American Guaranty & Liability Insurance v. Federico's Salon, Inc.

Appellate Division of the Supreme Court of New York

American Guaranty & Liability Insurance v. Federico's Salon, Inc.

66 A.D.2d 521, 888 N.Y.S.2d 468

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 15, 2009

StatusPublished

This text of 66 A.D.2d 521 (American Guaranty & Liability Insurance v. Federico's Salon, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

American Guaranty & Liability Insurance v. Federico's Salon, Inc., 66 A.D.2d 521, 888 N.Y.S.2d 468 (N.Y. Ct. App. 2009).

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Opinion

Order, Supreme Court, New York County (Edward H. Lehner, J.), entered March 17, 2008, which, insofar as appealed from as limited by the briefs, granted the motion of defendant Federico’s Salon Inc. (Federico’s) for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

Plaintiff, as subrogee of Oxxford Clothes, seeks to recover for property damage resulting when a toilet on the unoccupied fourth floor of the commercial building in which Oxxford was a tenant became clogged and overflowed, flooding Oxxford’s store and destroying its inventory. At the time, Federico’s leased the fifth floor of the building and was renovating its space.

Federico’s made a prima facie showing of entitlement to judgment as a matter of law, as it demonstrated that no negligence on its part contributed to the leak. In opposition, plaintiff sought to rely on the doctrine of res ipsa loquitur, which the motion court correctly determined was inapplicable. Even assuming that the evidence was sufficient to support a finding that the toilet malfunction was of a type caused by negligence, plaintiff failed to present competent evidence that Federico’s control of the fourth-floor bathroom was of “sufficient exclusivity to fairly rule out the chance that the defect . . . was caused by some agency other than [its] negligence” (Dermatossian v New York City Tr. Auth., 67 NY2d 219, 228 [1986]; see Edmonds v City of [522]*522Yonkers, 294 AD2d 330 [2002], lv denied 98 NY2d 612 [2002]). Indeed, the evidence shows that Federico’s did not control any portion of the fourth floor, but was occasionally allowed access when the elevator or emergency stairwell door was left unlocked. When the doors were unlocked, the building porter, real estate agents, and the independent contractors retained by Federico’s had access to the fourth-floor bathroom. Furthermore, to the extent the evidence permits an inference that the contractors hired by Federico’s negligently disposed of debris in the toilet, it is well established that “an employer who hires an independent contractor is not liable for the independent contractor’s negligent acts” (Rosenberg v Equitable Life Assur. Socy. of U.S., 79 NY2d 663, 668 [1992]), and plaintiff provides no reason to depart from this general rule. Concur—Andrias, J.P., Sweeny, Nardelli, Richter and Abdus-Salaam, JJ.

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Order, Supreme Court, New York County (Edward H. Lehner, J.), entered March 17, 2008, which, insofar as appealed from as limited by the briefs, granted the motion of defendant Federico’s Salon Inc. (Federico’s) for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

Plaintiff, as subrogee of Oxxford Clothes, seeks to recover for property damage resulting when a toilet on the unoccupied fourth floor of the commercial building in which Oxxford was a tenant became clogged and overflowed, flooding Oxxford’s store and destroying its inventory. At the time, Federico’s leased the fifth floor of the building and was renovating its space.

Federico’s made a prima facie showing of entitlement to judgment as a matter of law, as it demonstrated that no negligence on its part contributed to the leak. In opposition, plaintiff sought to rely on the doctrine of res ipsa loquitur, which the motion court correctly determined was inapplicable. Even assuming that the evidence was sufficient to support a finding that the toilet malfunction was of a type caused by negligence, plaintiff failed to present competent evidence that Federico’s control of the fourth-floor bathroom was of “sufficient exclusivity to fairly rule out the chance that the defect . . . was caused by some agency other than [its] negligence” (Dermatossian v New York City Tr. Auth., 67 NY2d 219, 228 [1986]; see Edmonds v City of [522]*522Yonkers, 294 AD2d 330 [2002], lv denied 98 NY2d 612 [2002]). Indeed, the evidence shows that Federico’s did not control any portion of the fourth floor, but was occasionally allowed access when the elevator or emergency stairwell door was left unlocked. When the doors were unlocked, the building porter, real estate agents, and the independent contractors retained by Federico’s had access to the fourth-floor bathroom. Furthermore, to the extent the evidence permits an inference that the contractors hired by Federico’s negligently disposed of debris in the toilet, it is well established that “an employer who hires an independent contractor is not liable for the independent contractor’s negligent acts” (Rosenberg v Equitable Life Assur. Socy. of U.S., 79 NY2d 663, 668 [1992]), and plaintiff provides no reason to depart from this general rule. Concur—Andrias, J.P., Sweeny, Nardelli, Richter and Abdus-Salaam, JJ.

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Bluebook (online)

66 A.D.2d 521, 888 N.Y.S.2d 468, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-guaranty-liability-insurance-v-federicos-salon-inc-nyappdiv-2009.

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