Opinion
000580/08.
Decided February 24, 2010.
Plaintiff represented by Jeffrey B. Melcer, Esq.
Defendant Pizza Del represented by John C. Szewczuk, Esq. of Marshall, Conway, Wright Bradley
After a jury verdict in favor of plaintiff, the defendants, Pizza-Del, Inc. d/b/a Eurostar Café Pizza-Del and 45th Street Bake Corp. d/b/a Eurostar Café (hereinafter "defendants"), move this Court for an order setting aside the jury verdict because it is contrary to the weight of the evidence pursuant to CPLR § 4404 (a).
On January 24, 2008, plaintiff was an apprentice/helper employed by EMO Corp. Air Conditioning. His supervisor was a mechanic named Alberto Ricuarte. The defendants contracted with EMO Corp. Air Conditioning to install metal panels for a walk-in freezer, to be built in their basement. On the day of the accident, after plaintiff and Mr. Ricuarte applied flammable glue to the walls of the soon-to-be freezer, and while they waited for it to get sticky, a fire ignited causing plaintiff to sustain burns to certain parts of his body.
Plaintiff brought this personal injury action against the defendants, who owned the deli, in which the accident occurred, Madison 45 Company, the owner of the building as well as other defendants. EMO Corp. Air Conditioning was not sued. Plaintiff claimed that his accident and injuries were caused by the negligence of all defendants as well as their violations of the Administrative Code and Labor Law Sections 240(1); 241(6); and 200. Prior to this matter being transferred to this Court pursuant to CPLR § 325(d), Justice Martin Schneier granted summary judgment to defendant Madison 45 Company with respect to plaintiff's negligence claims and violations of Labor Law Sections 200 and 240(1). Subsequently, after the defense rested, this Court dismissed plaintiff's claims pursuant to Labor Law Section 241 (6) and all Administrative Code violations. Thus, plaintiff's action against Madison 45 Company was dismissed. Plaintiff's only viable claim against the defendants was a cause of action for negligence.
Defendants argue that plaintiff did not establish that they were negligent. Specifically, (1) defendants did not have actual or constructive notice of any dangerous or defective conditions at their premises; (2) defendants did not create a defective or dangerous condition at their premises; (3) defendants did not supervise plaintiff's work; and (4) plaintiff's employer was an independent contractor who assumed the risk of its work without exception.
Plaintiff counters that (1) defendants knew or should have known about the defective condition of the premises because the plaintiff's employer previously performed the same work for the defendants at a different location; (2) defendants created the dangerous condition; (3) defendants had a duty to keep the premises safe; and (4) danger was a normal part of the work being performed.
Proof of negligence requires the demonstration of a duty and breach of that duty, which proximately causes plaintiff's damages. Schindler v. Ahearn, 69 AD3d 837, 2010 NY Slip Op. 00501 (2d Dept 2010); Fontana v. R.H.C Development, LLC, 69 AD3d 561 (2d Dept 2010).
A review of the evidence adduced at trial reveals that the defendants did not know nor should they have known of a dangerous condition or the use of the flammable glue. Besides admissions that plaintiff and plaintiff's employer previously performed a similar job, there was not one scintilla of evidence as to what that prior job actually consisted of, what materials were used, where the job was performed or any other particulars. Defendants did not supervise plaintiff's work. Although Mr. Ricuarte alluded to a conversation had by his boss and defendants' owner, Mr. Ricuarte admitted that he was not privy to that conversation, and he did not know what was discussed, including whether the defendants supervised the work. Moreover, plaintiff admitted he was supervised by Mr. Ricuarte, who worked with him at EMO Corp. Air Conditioning. No proof was produced to establish that the defendants created any defective or dangerous condition. Indeed, storing refuse in a basement and/or not having a ventilation system in the basement, are not, in and of themselves, unsafe or dangerous conditions.
Certainly, the defendants had a duty the maintain their premises in a safe condition, but they did not have the onus to guard against hazards inherent in the plaintiff's work nor hazards caused by a condition that plaintiff was engaged to repair nor hazards which were readily observed by plaintiff considering his age, intelligence, and experience. Gasper v. Ford Motor Co., 13 NY2d 104 (1963).
Plaintiff's contention that his work was inherently dangerous, thus defendants cannot escape liability is unpersuasive. This Court acknowledges that when there is an "inherently dangerous" situation a defendant is precluded from asserting the independent contractor theory. Wright v. Tudor City Twelfth Unit, Inc., 276 N.Y.303 (1938). However, to maintain such a position the plaintiff must provide proof of the dangerous nature of the work and that the danger was foreseeable. Id. Here, plaintiff did not shoulder his burden of proof.
Generally, an employer is not liable for the negligence of an independent contractor. Wright v. Tudor City Twelfth Unit, Inc., 276 N.Y.303 (1938).
The case at bar is quite similar to Liberty Mutual Fire Insurance Company v. Akindele, 65 AD3d 673; 885 NYS2d 302 (2d Dept. 2009), where a fire started while a contractor renovated the owner's kitchen. The insurance company commenced a subrogation action against the owner.
The Appellate Division found that the fire was caused by the negligence of the independent contractor in the performance of his work, which was not inherently dangerous. See also, Rosenberg v. Equitable Life Assurance Society of the United States, 79 NY2d 663, 584 NYS2d 765 (1992) (". . . the inherently dangerous exception cannot be applied unless a risk inherent in the nature of the procedures is apparent or contemplated by the employer).
Other than bald assertions of defendants' knowledge about the flammable glue, defendants' creation of a dangerous and defective condition, that the defendants supervised the plaintiff's work, and that plaintiff's work was inherently dangerous, plaintiff failed to substantiate his claims. Simply put, the plaintiff and his supervisor, in the course of their duties as employees for EMO Corp. Air Conditioning, caused the premises to become dangerous by using flammable glue in an unventilated area. Plaintiff's employer was an independent contractor, who is solely responsible for this unfortunate incident.
This Court finds that plaintiff failed to prove a prima facie case of negligence. Lowery v. Lamaute , 40 AD3d 822 , 836 NYS2d 650 (2d Dept. 2007); Herbert v. Metropolitan Life Ins. Co., 39 NYS2d 567 (Sup. Ct., Broome County 1943). Accordingly, defendants' motion is granted.