McSorley v. Tripoli

Appellate Division of the Supreme Court of New York

McSorley v. Tripoli

284 A.D.2d 900, 725 N.Y.S.2d 918, 2001 N.Y. App. Div. LEXIS 5771

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

DecidedJune 8, 2001

StatusPublished

Cited by2 cases

This text of 284 A.D.2d 900 (McSorley v. Tripoli) 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

McSorley v. Tripoli, 284 A.D.2d 900, 725 N.Y.S.2d 918, 2001 N.Y. App. Div. LEXIS 5771 (N.Y. Ct. App. 2001).

Pincite

Opinion

—Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court properly denied the motion of defendant Michael J. Tripoli, d/b/a Atlantic Services Contractors (Atlantic), for summary judgment dismissing the complaint against him because plaintiffs raised a triable issue of fact whether his conduct proximately caused the injuries of Angeline McSorley (plaintiff) (see, Burgos v Aqueduct Realty Corp., 92 NY2d 544, 550). We agree, however, with the contention of defendant Clearview Maintenance Corp. (Clearview) that its motion for summary judgment dismissing the complaint and cross claim against it should have been granted on the ground that it hired an independent subcontractor to perform the work that allegedly caused plaintiff’s injuries. The rule that a party who retains an independent contractor is not liable for the independent contractor’s negligent acts is “based on the premise that one who employs an independent contractor has no right to control the manner in which the work is to be done” (Kleeman v Rheingold, 81 NY2d 270, 274). Clearview submitted evidence establishing that Atlantic was an independent contractor, and plaintiffs failed to submit evidence raising a triable issue of fact whether Clearview controlled or supervised Atlantic’s work.

We reject Atlantic’s further contention that the court erred in failing to dismiss the complaint, sua sponte, based upon plaintiffs’ delays during the discovery process. Finally, Atlantic failed to seek summary judgment dismissing the Labor Law causes of action on the grounds now advanced on appeal, and we therefore do not address those grounds (see, Ciesinski v Town of Aurora, 202 AD2d 984, 985). (Appeals from Order of Supreme Court, Erie County, Sconiers, J. — Summary Judgment.) Present — Pigott, Jr., P. J., Pine, Wisner, Hurlbutt and Kehoe, JJ.

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—Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court properly denied the motion of defendant Michael J. Tripoli, d/b/a Atlantic Services Contractors (Atlantic), for summary judgment dismissing the complaint against him because plaintiffs raised a triable issue of fact whether his conduct proximately caused the injuries of Angeline McSorley (plaintiff) (see, Burgos v Aqueduct Realty Corp., 92 NY2d 544, 550). We agree, however, with the contention of defendant Clearview Maintenance Corp. (Clearview) that its motion for summary judgment dismissing the complaint and cross claim against it should have been granted on the ground that it hired an independent subcontractor to perform the work that allegedly caused plaintiff’s injuries. The rule that a party who retains an independent contractor is not liable for the independent contractor’s negligent acts is “based on the premise that one who employs an independent contractor has no right to control the manner in which the work is to be done” (Kleeman v Rheingold, 81 NY2d 270, 274). Clearview submitted evidence establishing that Atlantic was an independent contractor, and plaintiffs failed to submit evidence raising a triable issue of fact whether Clearview controlled or supervised Atlantic’s work.

We reject Atlantic’s further contention that the court erred in failing to dismiss the complaint, sua sponte, based upon plaintiffs’ delays during the discovery process. Finally, Atlantic failed to seek summary judgment dismissing the Labor Law causes of action on the grounds now advanced on appeal, and we therefore do not address those grounds (see, Ciesinski v Town of Aurora, 202 AD2d 984, 985). (Appeals from Order of Supreme Court, Erie County, Sconiers, J. — Summary Judgment.) Present — Pigott, Jr., P. J., Pine, Wisner, Hurlbutt and Kehoe, JJ.

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Bluebook (online)

284 A.D.2d 900, 725 N.Y.S.2d 918, 2001 N.Y. App. Div. LEXIS 5771, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcsorley-v-tripoli-nyappdiv-2001.

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