Bennett v. Commercial Flooring Specialists, Ltd.

77 A.D.3d 696, 909 N.Y.S.2d 128

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 12, 2010
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County (Rosengarten, J.), entered July 16, 2009, which denied its motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, and the defendant’s motion for summary judgment dismissing the complaint is granted.

The plaintiff commenced this action alleging that the defendant, or its purported agent, nonparty A.C. Floors, Inc. (hereinafter AC Floors), during the course of installing carpeting at the plaintiffs place of employment, negligently stacked plastic floor mats near a copy machine, over which the plaintiff tripped and fell.

The defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that it did not stack the plastic floor mats and that, if AC Floors stacked the mats, that AC Floors was not its employee, but rather, was an independent contractor (see Metling v Punia & Marx, 303 AD2d 386, 387-388 [2003]; Abouzeid v Grgas, 295 AD2d 376, 377 [2002]; Mercado v Slope Assoc., 246 AD2d 581 [1998]; see generally Kleeman v Rheingold, 81 NY2d 270, 273 [1993]). In opposition, the plaintiff failed to raise a triable issue of fact (see Stock v Otis El. Co., 52 AD3d 816, 816-817 [2008]; Abouzeid v Grgas, 295 AD2d at 378). Accordingly, the Supreme Court should have granted the defendant’s motion for summary judgment dismissing the complaint. Rivera, J.P., Skelos, Chambers and Roman, JJ., concur.