Consolidated Edison Co. of NY, Inc. v DiPrima

[*1] Consolidated Edison Co. of NY, Inc. v DiPrima 2015 NY Slip Op 50368(U) Decided on March 26, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 26, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Ling-Cohan, JJ.
570526/14

Consolidated Edison Company of New York, Inc., Plaintiff-Respondent,

against

Joseph DiPrima, Defendant-Appellant, -and- Big B Tree Care, Defendant.

Defendant Joseph DiPrima appeals from an order of the Civil Court of the City of New York, New York County (Andrea Masley, J.), entered January 27, 2014, which denied his motion for summary judgment dismissing the complaint as against him.

Per Curiam.

Order (Andrea Masley, J.), entered January 27, 2014, reversed, with $10 costs, motion granted and complaint dismissed as against defendant appellant. The Clerk is directed to enter judgment accordingly.

Plaintiff commenced this action seeking damages incurred when two sections of its overhead wires were damaged during a tree trimming process performed on the property of defendant-appellant homeowner, Joseph DiPrima. In moving for summary judgment, appellant demonstrated a prima facie entitlement to judgment as a matter of law by establishing that the damage to plaintiff's wires was caused by the negligence of an independent contractor appellant hired, a tree trimmer, for which appellant was not liable (Liberty Mut. Fire Ins. Co. v Akindele, 65 AD3d 673 [2009]; Concord Vil. Owners, Inc. v Trinity Communications Corp., 61 AD3d 410 [2009]).

In opposition, plaintiff does not dispute that the tree trimmer was an independent contractor. Plaintiff's claim that appellant may nevertheless be liable based upon the "inherently dangerous" exception to the independent contractor rule (see generally Chainani v Board of Educ. of City of NY, 87 NY2d 370, 381 [1995]; Rosenberg v Equitable Life Assur. Socy. of U.S., 79 NY2d 663, 670 [1992]), is without merit. The record shows that the damage to plaintiff's [*2]wires occurred as the result of ordinary negligence by the tree trimmer in performing work which was not inherently dangerous (see Saini v Tonju Assoc., 299 AD2d 244 [2002]; MacDonald v Heuer, 253 AD2d 795 [1998]). Indeed, the tree trimming work at issue "manifestly would have involved no extraordinary hazard if it had been performed with ordinary care" (May v 11 1/2 E. 49th St. Co., Inc., 269 App Div 180, 186-187 [1945], affd 269 NY 599 [1946], quoting Kagan v Avallone, 243 App Div 437, 439 [1935]). Thus, the public policy behind imposing liability on the homeowner on the theory that the contractor was performing an inherently dangerous task would not be served by applying the doctrine to this case (see MacDonald v Heuer, 253 AD2d at 796).

Nor was any triable issue raised as to whether appellant was negligent in hiring the independent contractor (see Bellere v Gerics, 304 AD2d 687, 688 [2003]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: March 26, 2015