Ruiz v Narco Freedom, Inc.

[*1] Ruiz v Narco Freedom, Inc. 2014 NY Slip Op 50278(U) Decided on February 28, 2014 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 28, 2014
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr.,JJ
. NYC ounty Clerk's No. 570976/13

Norma Ruiz and Gilberto Ruiz, Plaintiffs-Respondents,

against

Narco Freedom, Inc., Defendant-Appellant, -and- Gallant Knight Security, Inc., Defendant-Respondent, -and- Carlos Tall, Defendant.

Defendant Narco Freedom, Inc., as limited by its briefs, appeals from that portion of an order of the Civil Court of the City of New York, Bronx County (Gerald Lebovits, J.), entered July 2, 2013, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Gerald Lebovits, J.), entered July 2, 2013, insofar as appealed from, reversed, with $10 costs, the defendant-appellant's motion for summary judgment granted, and the complaint dismissed as against it. The Clerk is directed to enter judgment accordingly. No basis is shown on the post-discovery, summary judgment record before us to impose liability on defendant-appellant Narco Freedom, Inc. ("appellant"), an outpatient health clinic, for personal injuries allegedly sustained by plaintiff as a result of an assault committed by defendant Tall, a security guard. Appellant demonstrated, prima facie, that the security guard was an independent contractor for whom it was not vicariously liable (see Kleeman v Rheingold, 81 NY2d 270, 273 [1993]) and, in response, plaintiff failed to raise a triable issue. The record establishes that appellant merely contracted with defendant Gallant Knight Security, Inc. ("Gallant"), Tall's direct employer, for the assignment of various security guards to the clinic; Gallant, not appellant, hired and trained the guards, and supervised their work (see McCann v [*2]Varrick Group LLC, 84 AD3d 591 [2011]; Vargas v Beer Garden, Inc., 15 AD3d 277 [2005], lv denied 4 NY3d 710 [2005]; Johnson v Oval Pharm., 165 AD2d 587 [1991], lv denied 78 NY2d 859 [1991]); and appellant did not exercise "actual or constructive control over the performance and manner" in which the security guards performed their work (Lazo v Mak's Trading Co., Inc., 84 NY2d 896 [1994]; see Halpin v Hernandez, 51 AD3d 724 [2008]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: February 28, 2014