Spitzer v. Kings Plaza Shopping Center of Flatbush Avenue, Inc.

Appellate Division of the Supreme Court of New York

Spitzer v. Kings Plaza Shopping Center of Flatbush Avenue, Inc.

275 A.D.2d 450, 713 N.Y.S.2d 68, 2000 N.Y. App. Div. LEXIS 8945

Appellate Division of the Supreme Court of the State of New York·Decided August 28, 2000·Published·Cited by 1 cases

Opinion

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Barasch, J.), dated July 1, 1999, which granted the motion of the defendants Kings Plaza Shopping Center of Flatbush Avenue, Inc., and Germonds Properties Corporation for summary judgment dismissing the complaint insofar as asserted against them.

Ordered that the order is affirmed, with costs.

The plaintiff Sara Spitzer slipped and fell in a shopping center owned or operated by the respondents, allegedly as the result of a condition created by a maintenance worker, who was seen in the vicinity with a mop. In support of their motion for summary judgment, the respondents produced competent evidence which showed that such cleaning services were not performed by their employees, but rather by the employees of an independent contractor. Since the cleaning activity in question was not intrinsically dangerous, and since there was no proof that the respondents controlled the contractor’s work, the respondents, as owners of the premises, cannot be held liable for the negligent performance of such services by an independent contractor (see, Terzo v Wiederkehr, 270 AD2d 479; Fischer v Battery Bldg. Maintenance Co., 135 AD2d 378). Bracken, J. P., Santucci, McGinity and Feuerstein, JJ., concur.

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—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Barasch, J.), dated July 1, 1999, which granted the motion of the defendants Kings Plaza Shopping Center of Flatbush Avenue, Inc., and Germonds Properties Corporation for summary judgment dismissing the complaint insofar as asserted against them.

Ordered that the order is affirmed, with costs.

The plaintiff Sara Spitzer slipped and fell in a shopping center owned or operated by the respondents, allegedly as the result of a condition created by a maintenance worker, who was seen in the vicinity with a mop. In support of their motion for summary judgment, the respondents produced competent evidence which showed that such cleaning services were not performed by their employees, but rather by the employees of an independent contractor. Since the cleaning activity in question was not intrinsically dangerous, and since there was no proof that the respondents controlled the contractor’s work, the respondents, as owners of the premises, cannot be held liable for the negligent performance of such services by an independent contractor (see, Terzo v Wiederkehr, 270 AD2d 479; Fischer v Battery Bldg. Maintenance Co., 135 AD2d 378). Bracken, J. P., Santucci, McGinity and Feuerstein, JJ., concur.

Spitzer v. Kings Plaza Shopping Center of Flatbush Avenue, Inc., 275 A.D.2d 450, 713 N.Y.S.2d 68, 2000 N.Y. App. Div. LEXIS 8945 (N.Y. Ct. App. 2000).

Pincite

275 A.D.2d 450 (Spitzer v. Kings Plaza Shopping Center of Flatbush Avenue, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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