Mele v. USTA Construction

Appellate Division of the Supreme Court of New York

Mele v. USTA Construction

82 A.D.3d 944, 919 N.Y.2d 85

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

DecidedMarch 15, 2011

StatusPublished

This text of 82 A.D.3d 944 (Mele v. USTA Construction) 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

Mele v. USTA Construction, 82 A.D.3d 944, 919 N.Y.2d 85 (N.Y. Ct. App. 2011).

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Opinion

“The general rule is 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]; see Kleeman v Rheingold, 81 NY2d 270, 273-274 [1993]). Here, under the circumstances presented, the defendant Muslum Avei failed to establish, prima facie, that the defendant USTA Construction was his independent contractor, and that the so-called “independent contractor rule” therefore applied (see Willis v City of New York, 266 AD2d 208 [1999]; cf. Pittman v S. P. Lenox Realty, LLC, 49 AD3d 621 [2008]). Since Avei did not tender “sufficient evidence to dem[945]*945onstrate the absence of any material issues of fact” (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]), he failed to meet his prima facie burden and, thus, it is not necessary to consider the sufficiency of the plaintiffs opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Accordingly, the Supreme Court should have denied that branch of Avei’s motion which was for summary judgment dismissing the complaint insofar as asserted against him. Mastro, J.E, Skelos, Balkin and Leventhal, JJ., concur.

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“The general rule is 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]; see Kleeman v Rheingold, 81 NY2d 270, 273-274 [1993]). Here, under the circumstances presented, the defendant Muslum Avei failed to establish, prima facie, that the defendant USTA Construction was his independent contractor, and that the so-called “independent contractor rule” therefore applied (see Willis v City of New York, 266 AD2d 208 [1999]; cf. Pittman v S. P. Lenox Realty, LLC, 49 AD3d 621 [2008]). Since Avei did not tender “sufficient evidence to dem[945]*945onstrate the absence of any material issues of fact” (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]), he failed to meet his prima facie burden and, thus, it is not necessary to consider the sufficiency of the plaintiffs opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Accordingly, the Supreme Court should have denied that branch of Avei’s motion which was for summary judgment dismissing the complaint insofar as asserted against him. Mastro, J.E, Skelos, Balkin and Leventhal, JJ., concur.

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Bluebook (online)

82 A.D.3d 944, 919 N.Y.2d 85, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mele-v-usta-construction-nyappdiv-2011.

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