Luksik v. 27 Prospect Park West Tenants Corp.

19 A.D.3d 557, 796 N.Y.S.2d 535

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 20, 2005
• Status: Published

Opinion

In an action to recover for damage to property, the defendant appeals from an order of the Supreme Court, Kings County (Douglass, J.), dated January 21, 2004, which denied its motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The general rule is that an employer who hires an independent contractor is not liable for the independent contractor’s negligent acts (see Kleeman v Rheingold, 81 NY2d 270, 273 [1993]; Rosenberg v Equitable Life Assur. Socy. of U.S., 79 NY2d 663, 668 [1992]). One exception to this general rule involves situations where the employer “has assigned work to an independent contractor which the employer knows or has reason to know involves special dangers inherent in the work or dangers which should have been anticipated by the employer” (Rosenberg v Equitable Life Assur. Socy. of U.S., supra at 668). Whether the work is inherently dangerous is normally a question of fact to be determined by the jury (id. at 670).

The defendant, as the proponent of a summary judgment motion, was required to make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). The defendant failed to meet its burden. Accordingly, the Supreme Court properly denied its motion for summary judgment dismissing the complaint. Cozier, J.P., S. Miller, Rivera and Fisher, JJ., concur.