Opinion
570635/11
03-20-2012
Janis DiPietro, Plaintiff-Respondent, v. Stark Carpet Corp. and Extreme Carpet LLC, Defendants-Appellants.
PRESENT: , J.P., Shulman, Hunter, Jr., JJ
Defendant Stark Carpet Corp., as limited by its briefs, appeals from so much of an order of the Civil Court of the City of New York, New York County (Anil C. Singh, J.), dated October 4, 2010, as denied its motion for summary judgment dismissing the complaint.
Per Curiam.
Order (Anil C. Singh, J.), dated October 4, 2010, insofar as appealed from, reversed, with $10 costs, the motion for summary judgment of defendant Stark Carpet Corp. granted, and the complaint dismissed against it.
No basis is shown on the post-discovery, summary judgment record before us to impose liability on defendant Stark Carpet Corp. (Stark), a carpet wholesaler, for any negligent conduct attributable to defendant Extreme Carpet LLC, a carpet installation firm. The evidence demonstrates that Stark did not control the method and means of Extreme's work, but exercised, at most, general supervisory authority over it, which is insufficient to subject Stark to tort liability for Extreme's acts (see Lazo v Mak's Trading Co., 84 NY2d 896 [1994]; Harjes v Parisio, 1 AD3d 680 [2003]). In this connection, it was shown that Extreme does installation work for other flooring companies, schedules its own work, receives payment on a per job basis, and uses its own tools and equipment, including the "hammer gun" from which the staple(s) that allegedly caused plaintiff's injuries was (were) produced. That Stark generated a work order containing general instructions relating to the carpet installation — including notations that Extreme should "start in bedroom" and call the customer a half hour before arrival — is too slender a reed to impose vicarious liability upon Stark, at least on this record which contains no showing that Stark otherwise supervised or controlled Extreme's work (see Harjes v Parisio, 1 AD3d 680, supra).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.