Talasazan v. 4Matic Constr. Corp.
Opinion
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Bureau Thomas J.K. Smith, State Reporter
Talasazan v 4Matic Constr. Corp.
2026 NY Slip Op 02864
May 6, 2026
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This decision is uncorrected and subject to revision before publication in the Official Reports.
Kayvan Talasazan, plaintiff-appellant,
v
4Matic Construction Corp., defendant-appellant, Toll First Avenue, LLC., et al., defendants-respondents, et al., defendants (and a third-party action).
Supreme Court of the State of New York, Appellate Division, Second Judicial Department
Decided on May 6, 2026
2020-05756, (Index No. 520673/16)
Mark C. Dillon, J.P.
Paul Wooten
Carl J. Landicino
Donna-Marie E. Golia, JJ.
Kaplan & Kaplan, P.C., Melville, NY (Susan R. Nudelman and Steven L. Kaplan of counsel), for plaintiff-appellant.
Gartner + Bloom, P.C., New York, NY (Christine M. Messina of counsel), for defendant-appellant.
Gallo Vitucci Klar LLP, New York, NY (Yolanda L. Ayala of counsel), for defendants-respondents.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals, and the defendant 4Matic Construction Corp. separately appeals, from an order of the Supreme Court, Kings County (Dawn Jimenez-Salta, J.), entered June 26, 2020. The order, insofar as appealed from by the plaintiff, granted that branch of the motion of the defendants Toll First Avenue, LLC, and Toll GC, LLC, which was for summary judgment dismissing the complaint insofar as asserted against them. The order, insofar as appealed from by the defendant 4Matic Construction Corp., granted those branches of the motion of the defendants Toll First Avenue, LLC, and Toll GC, LLC, which were for summary judgment on their cross-claims against the defendant 4Matic Construction Corp. for contractual and common-law indemnification.
ORDERED that the order is affirmed insofar as appealed from by the plaintiff; and it is further,
ORDERED that the order is reversed insofar as appealed from by the defendant 4Matic Construction Corp., on the law, those branches of the motion of the defendants Toll First Avenue, LLC, and Toll GC, LLC, which were for summary judgment on their cross-claims against the defendant 4Matic Construction Corp. for contractual and common-law indemnification are denied with respect to costs and fees incurred in defending the action, and are otherwise denied as academic; and it is further,
ORDERED that one bill of costs is awarded to the defendants Toll First Avenue, LLC, and Toll GC, LLC, payable by the plaintiff, and one bill of costs is awarded to the defendant 4Matic Construction Corp., payable by the defendants Toll First Avenue, LLC, and Toll GC, LLC.
On August 26, 2015, the plaintiff allegedly was injured when the vehicle he was [*2]operating, which was stopped at a red traffic signal, was struck by a brick or piece of brick, causing the windshield to shatter and glass shards to propel into his eyes and chest. At the time of the accident, the plaintiff's vehicle was in the street adjacent to a building owned by the defendant Toll First Avenue, LLC (hereinafter the owner), which was undergoing a construction project. The defendant Toll GC, LLC (hereinafter the general contractor), a subsidiary of the owner, acted as general contractor for the construction project. The general contractor had hired the defendant 4Matic Construction Corp. (hereinafter the subcontractor), to, among other things, perform brickwork on the building's exterior facade.
In November 2016, the plaintiff commenced this action to recover damages for personal injuries against, among others, the owner, the general contractor, and the subcontractor. The plaintiff alleged, inter alia, that the accident was caused by building materials falling from the subject building. In their answer, the owner and the general contractor asserted cross-claims against the subcontractor for contractual and common-law indemnification with respect to, among other things, costs and fees incurred in defending the action. Thereafter, the owner and the general contractor moved for summary judgment dismissing the complaint insofar as asserted against them and on their cross-claims against the subcontractor for contractual and common-law indemnification. In an order entered June 26, 2020, the Supreme Court granted the motion. These appeals ensued.
"As a general rule, 'a party who retains an independent contractor, as distinguished from a mere employee or servant, is not liable for the independent contractor's negligent acts'" (Santiago v 527 Grand, LLC, 232 AD3d 925, 927, quoting Kleeman v Rheingold, 81 NY2d 270, 273; see Butnik v Luna Park Hous. Corp., 200 AD3d 993, 993). "The primary justification for this rule is that 'one who employs an independent contractor has no right to control the manner in which the work is to be done and, thus, the risk of loss is more sensibly placed on the contractor'" (Santiago v 527 Grand, LLC, 232 AD3d at 927-928 [internal quotation marks omitted], quoting Bennett v State Farm Fire & Cas. Co., 198 AD3d 857; see Brothers v New York State Elec. & Gas Corp., 11 NY3d 251, 258). However, "[t]here are various exceptions to the general rule against vicarious liability for the acts of an independent contractor" (Bennett v State Farm Fire & Cas. Co., 198 AD3d at 859). "These exceptions fall into three basic categories: 'negligence of the employer in selecting, instructing or supervising the contractor; employment for work that is especially or "inherently" dangerous; and, finally, instances in which the employer is under a specific nondelegable duty'" (id., quoting Kleeman v Rheingold, 81 NY2d at 274).
Here, the owner and the general contractor established, prima facie, that they could not be held liable for the allegedly negligent brickwork, since they did not control or supervise the means or methods by which that work was to be performed by the subcontractor, which was an independent contractor (see Shimunov v Ashirov, 238 AD3d 1088, 1089; Shusterich v Kleinman, 171 AD3d 1236, 1237). In opposition, the plaintiff failed to raise a triable issue of fact as to whether the owner and the general contractor exercised control over the subcontractor's work or as to the applicability of the exception to the general rule of nonliability for the negligent acts of an independent contractor based on inherently dangerous work (see Shusterich v Kleinman, 171 AD3d at 1237; Hill v City of New York, 151 AD3d 1032, 1033). Accordingly, the Supreme Court properly granted that branch of the motion of the owner and the general contractor which was for summary judgment dismissing the complaint insofar as asserted against them.
In light of our determination, the Supreme Court should have denied, as academic, tho
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