Opinion
2017–10868 Index No. 11696/13
01-29-2020
Tahir HUSSAIN, Respondent, v. CITY OF NEW YORK, et al., Appellants.
Hammill, O'Brien, Croutier, Dempsey, Pender & Koehler, P.C., Syosset, N.Y. (Anton Piotroski of counsel), for appellants. Subin Associates, LLP (Pollack, Pollack, Isaac & DeCicco, LLP, New York, N.Y. [Brian J. Isaac, Paul H. Seidenstock, and Jillian Rosen ], of counsel), for respondent.
Hammill, O'Brien, Croutier, Dempsey, Pender & Koehler, P.C., Syosset, N.Y. (Anton Piotroski of counsel), for appellants.
Subin Associates, LLP (Pollack, Pollack, Isaac & DeCicco, LLP, New York, N.Y. [Brian J. Isaac, Paul H. Seidenstock, and Jillian Rosen ], of counsel), for respondent.
LEONARD B. AUSTIN, J.P., COLLEEN D. DUFFY, VALERIE BRATHWAITE NELSON, LINDA CHRISTOPHER, JJ.
DECISION & ORDER ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against the defendants National Grid Energy Management, LLC, National Grid Energy Services, LLC, National Grid Engineering & Survey, Inc., and National Grid Technologies, Inc., and substituting therefor a provision granting that branch of the defendants' motion; as so modified, the order is affirmed, without costs or disbursements.
The plaintiff allegedly sustained personal injuries when, while operating his vehicle on Mermaid Avenue, between Stillwell Avenue and West 15th Street, he drove over a steel plate in the roadway, which slid and "stood up," causing the front of the plaintiff's vehicle to go down into a hole. The plaintiff commenced this action against National Grid Energy Management, LLC, National Grid Energy Services, LLC, National Grid Engineering & Survey, Inc., and National Grid Technologies, Inc. (hereinafter collectively the National Grid defendants), and the City of New York. Around the time of the accident, a utility company related to the National Grid defendants obtained a permit to install a new gas main on West 15th Street. The installation required work to be performed on Mermaid Avenue. The utility company retained a contractor to perform the work.
The defendants moved for summary judgment dismissing the complaint, contending, inter alia, that the National Grid defendants did not create the alleged hazardous condition and could not be held liable for the negligence of their independent contractor. In reply to the plaintiff's opposition, the defendants argued, among other things, that the City was entitled to summary judgment dismissing the complaint insofar as asserted against it since the plaintiff had failed to plead and prove that the City had prior written notice of the defect. The Supreme Court denied the motion, and the defendants appeal.
Generally, "a party who retains an independent contractor, as distinguished from a mere employee or servant, is not liable for the independent contractor's negligent acts" ( Kleeman v. Rheingold, 81 N.Y.2d 270, 273, 598 N.Y.S.2d 149, 614 N.E.2d 712 ; see Brothers v. New York State Elec. & Gas Corp., 11 N.Y.3d 251, 258, 869 N.Y.S.2d 356, 898 N.E.2d 539 ). "[T]he prima facie showing which a defendant must make on a motion for summary judgment is governed by the allegations of liability made by the plaintiff in the pleadings" ( Foster v. Herbert Slepoy Corp., 76 A.D.3d 210, 214, 905 N.Y.S.2d 226 ). Here, based upon the plaintiff's pleadings, the defendants established their entitlement to judgment dismissing the complaint insofar as asserted against the National Grid defendants by demonstrating, prima facie, that the National Grid defendants could not be held liable for the alleged defect which was allegedly created by their independent contractor (see Miller v. Infohighway Communications Corp., 115 A.D.3d 713, 715, 981 N.Y.S.2d 797 ). In opposition, the plaintiff failed to raise a triable issue of fact as to whether the National Grid defendants were vicariously liable for their independent contractor's negligence because they assumed a duty by contract (see Brothers v. New York State Elec. & Gas Corp., 11 N.Y.3d at 259–260, 869 N.Y.S.2d 356, 898 N.E.2d 539 ). Contrary to the plaintiff's contention, since he raised this argument for the first time in opposition to the motion, the defendants properly submitted evidence to respond to it in their reply papers (see Citimortgage, Inc. v. Espinal, 134 A.D.3d 876, 879, 23 N.Y.S.3d 251 ). Accordingly, the Supreme Court should have granted that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against the National Grid defendants.
The defendants' contention that the City was entitled to summary judgment dismissing the complaint insofar as asserted against it because the plaintiff had failed to plead and prove that it had prior written notice of the condition, was improperly raised for the first time in their reply papers (see Matter of Krausz v. Ashkenazi, 147 A.D.3d 949, 951, 47 N.Y.S.3d 132 ; First Republic Bank v. Salander, 131 A.D.3d 668, 669, 15 N.Y.S.3d 703 ; Ramsarup v. Rutgers Cas. Ins. Co., 98 A.D.3d 494, 496, 949 N.Y.S.2d 436 ). Accordingly, we agree with the Supreme Court's determination to deny that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against the City.
AUSTIN, J.P., DUFFY, BRATHWAITE NELSON and CHRISTOPHER, JJ., concur.