Lopez v Allied Amusement Shows, Inc.

[*1] Lopez v Allied Amusement Shows, Inc. 2009 NY Slip Op 52808(U) Decided on October 6, 2009 Supreme Court, Bronx County Roman, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 6, 2009
Supreme Court, Bronx County

Lesly Lopez, Plaintiff(s),

against

Allied Amusement Shows, Inc., ABC CORPORATIONS (1-10) AND JOHN DOES (1-10), Defendant(s).



18168/06

Nelson S. Roman, J.

Defendant ALLIED AMUSEMENT SHOWS, INC. (Allied) moves seeking an Order granting it summary judgement over plaintiff and all other defendants on grounds that it did own, operate, maintain, or control the neither the slide which allegedly caused plaintiff's accident nor the property where the same sat. Plaintiff opposes the instant motion averring that insofar as Allied breached it's duty to the plaintiff the instant motion must be denied.

For the reasons that follow hereinafter, Allied's motion is hereby granted.

The instant action is for alleged personal injuries. The complaint alleges the following. On October 25, 2003, plaintiff was using a slide when she was caused to trip and fall. Defendants distributed, installed, sold, leased, assembled and maintained the slide and were negligent in the course thereof. As a result of defendants' negligence, plaintiff sustained injury.

In support of the instant motion, Allied submits plaintiff's deposition transcript, wherein, she testified, in pertinent part as follows. On October 23, 3003, plaintiff was injured while riding a slide at street fair. The street fair was sponsored by an assemblyman and was held on a public street. Plaintiff arrived at the street fair with her daughter and proceeded to tide a slide. The slide was very high and had two lanes. In order to ride the slide, one would climb the steps to the top, a potato sack was provided and then one would slide down to the bottom. The slide had several dips and bumps on its lanes. As plaintiff climbed the steps to top of the slide with her daughter, she noticed that said slide was cleaned. Plaintiff reached the top of the slide and sat in the lane, with her daughter on her lap. Plaintiff began her descent down the slide and picked up speed. As plaintiff neared the bottom, she saw nothing to cushion her fall and noted that she was not slowing down. Fearing that she would hit the concrete plaintiff used her foot as a break, injuring her ankle. Plaintiff saw no signs indicating who owned or operated the slide. [*2]

Allied submits Joseph Kennedy's (Kennedy) deposition transcript, wherein he states, in pertinent part, as follows. In October 2003, Kennedy owned Allied, as company that provided rides to festivals and events. Kennedy was Allied's sole employee. In August 2003, Allied was hired by the Throgs Neck Homeowners Association to provide rides for a festival. The festival would transpire over the course of days, including October 25, 2003. Allied contracted with Nevins Amusement (Nevins) to provide the required rides, a slide and a teacup. Kennedy was not present at the festival and Nevins provided it's own employees to operate the rides.

The Law and Standard on Summary Judgment

The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law. Alvarez v. Prospect Hospital, 68 NY2d 320 (1986); Zuckerman v. City of New York, 49 NY2d 557 (1980). There is no requirement that the proof for said motion be submitted in affidavit form, rather, the requirement is that the evidence proffered be in admissible form. Muniz v. Bacchus, 282 AD2d 387 (1st Dept. 2001). Accordingly, affirmations from attorneys having no personal knowledge of the facts are not evidence and offer nothing more than hearsay. Reuben Israelson v. Sidney Rubin, 20 AD2d 668 (2nd Dept. 1964); Erin Federico v. City of Mechanicville, 141 AD2d 1002 (3rd Dept. 1988); Harry L. Cohen v. Genesee Supply Co., 7 AD2d 886 (4th Dept. 1959). Consequently any such submissions are inadmissible and cannot be the basis for creating an issue of fact sufficient to preclude summary judgment. Johnson v. Phillips, 261 AD2d 269 (1st Dept. 1999); Rue v. Stokes, 191 AD2d 245 (1st Dept. 1993). Similarly, unsworn accident reports are inadmissible and cannot be considered by the court. Id.; Reed v. New York Coty Transit Authority, 299 AD2d 330 (2nd Dept. 2002); Hegy v. Coller, 262 AD2d 606 (2nd Dept. 1999). Photographs submitted in support or in opposition to a motion for summary judgment must be authenticated and be accompanied by the requisite foundation. Read v. Ellenville National Bank, 20 AD3d 408 (2nd Dept. 2005); Wasserman v. Genovese Drug Store, Inc., 282 AD2d 447 (2nd Dept. 2001); Morales v. City of New York, 278 AD2d 293 (2nd Dept. 2000); Charlip v. City of New York, 249 AD2d 432 (2nd Dept. 1998); Saks v. Yeshiva of Spring Valley, Inc., 257 AD2d 615 (2nd Dept. 1999); Truesdell v. Rite Aid of New York, Inc., 228 AD2d 922 (3rd Dept. 1996). Authentication, with regard to photographs, generally requires evidence that the photographs being proffered fairly and accurately represent the condition depicted by said photographs. Read v. Ellenville National Bank, 20 AD3d 408 (2nd Dept. 2005); Charlip v. City of New York, 249 AD2d 432 (2nd Dept. 1998); Saks v. Yeshiva of Spring Valley, Inc., 257 AD2d 615 (2nd Dept. 1999). With regards leases such documents can be admitted and considered for purposes of summary judgment if they are accompanied by an affidavit, which establish that the documents attached are true and accurate copies of documents contained within the proponent's file. DeLeon v. Port Authority of New York and New Jersey, 306 AD2d 146 (1st Dept. 2003). An opponent's failure to object to a business record for which no foundation is laid coupled with the opponent's reliance upon the same allows the court to consider said document in support of a motion for summary judgment. Niagara Frontier Transit Metro System, Inc., 212 AD2d 1027 (4th Dept. 1995).

Once movant meets his initial burden, the burden shifts to the opponent, who must then produce sufficient evidence, also in admissible form, to establish the existence of a triable issue of [*3]fact. Zuckerman v. City of New York, 49 NY2d 557 (1980). The burden, however, always remains where it began, with the movant on the issue. Hence, "if the evidence on the issue is evenly balanced, the party that bears the burden must loose." Director Office of Workers Compensation Programs v. Greenwich Collieris, 512 U.S. 267 (1994); 300 East 34th Street Co. V. Habeeb, 248 AD2d 50 (1st Dept. 1997).

It is worth noting, however, that while the movant's burden to proffer evidence in admissible form is absolute, the opponent's burden is not. On this issue the Court of Appeals has stated

[t]o obtain summary judgment it is necessary that the movant establish his cause of action or defense sufficiently to warrant the court as a matter of law in directing summary judgment' in his favor, and he must do so by the tender of evidentiary proof in admissible form. On the other hand, to defeat a motion for summary judgment the opposing party must show facts sufficient to require a trial of any issue of fact.' Normally if the opponent is to succeed in defeating a summary judgment motion, he too, must make his showing by producing evidentiary proof in admissible form. The rule with respect to defeating a motion for summary judgment, however, is more flexible, for the opposing party, as contrasted with the movant, may be permitted to demonstrate acceptable excuse for his failure to meet strict requirement of tender in admissible form. Whether the excuse offered will be acceptable must depend on the circumstances in the particular case. (Internal citations omitted).

Friends of Animals v. Associated Fur Manufacturers, Inc., 46 NY2d 1065, 1067-1068 (1979). Accordingly, generally, the opponent of a motion for summary judgment seeking to have court consider inadmissible evidence must proffer an excuse for proffering the inadmissible evidence in inadmissible form. Johnson v. Phillips, 261 AD2d 269 (1st Dept. 1999). Other cases seem to hold that otherwise inadmissable evidence may be used to defeat summary judgment if the inadmissable evidence would be admissible at trial and raises questions of fact.. Phillips v. Joseph Kantor & Company, 31 NY2d 307 (1972); Buckley v. J.A. Jones/GMO, 38 AD3d 461 (1st Dept. 2007); Levbarg v. City of New York, 282 AD2d 239 (1st Dept. 2001); Eitner v. 119 West 71st Street Owners Corp., 253 AD2d 641 (1st Dept. 1998). In Phllips, for example, found that evidence submitted in inadmissible form in opposition to summary judgment might be admissible at trial and if so would support plaintiff's cause of action. Phillips v. Joseph Kantor & Company, 31 NY2d 307 (1972). The Court thus denied summary judgment to the defendant. Id. Similarly, in Zuckerman v. City of New York, 49 NY2d 557 (1980), the court discounted an attorney affirmation as speculative, in that said attorney lacked no personal knowledge of the facts he was proffering. Id. The court, however, in recognizing that inadmissible evidence could be used to preclude summary judgment, stated that if said attorney had personal knowledge of a witnesses testimony and that witnesses' testimony created an issue fact, said affirmation would suffice to defeat summary judgment. Id.; See, Indig v. Finkelstein, 23 NY2d 728 (1968); Graso v. Angerami, 79 NY2d 813 (1991). In Buckley, a careful reading evinces that the court found that plaintiff raised an issue of fact sufficient to preclude summary judgment when he submitted an accident report containing hearsay. Buckley v. J.A. Jones/GMO, 38 AD3d 461 (1st Dept. 2007). The report was submitted in admissible form as it was undisputed that the same was created in the ordinary course of business. Id. The court held insofar as said report would be admissible at trial as a business record under CPLR §4518, said report contained an inconsistent statement, and said report evinced a witness with knowledge, the same [*4]raised an issue of fact sufficient to preclude summary judgment. This Court reads the cases just cited as standing for the proposition that hearsay within documents submitted in inadmissable form, if admissible at trial, is sufficient to raise an issue of fact sufficient to preclude summary judgment. This Court still requires that submissions in opposition for summary judgment be submitted in admissible form of that evidence's inadmissibility be excused.

When deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility. As the Court stated in Knepka v. Talman, 278 AD2d 811 (4th Dept. 2000):

Supreme Court erred in resolving issues of credibility in granting defendants' motion for summary judgment dismissing the complaint. Any inconsistencies between the deposition testimony of plaintiffs and their affidavits submitted in opposition to the motion present issues for trial. (Internal citations omitted).

See also, Yaziciyan v. Blancato, 267 AD2d 152 (1st Dept. 1999); Perez v. Bronx Park Associates, 285 AD2d 402 (1st Dept. 2001); Glick & Dullock v. Tri-Pac Export Corp., 22 NY2d 439 (1968); Singh v. Kolcaj Realty Corp., 283 AD2d 350 (1st Dept. 2001).

Accordingly, the Court's function when determining a motion for summary judgment is issue finding and not issue determination. Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395 (1957). Lastly, because summary judgment is such a drastic remedy, it should never be granted when there is any doubt as to the existence of a triable issue of fact. Rotuba Extruders v. Ceppos, 46 NY2d 223 (1978). When the existence of an issue of fact is even debatable, summary judgment should be denied. Stone v. Goodson, 8 NY2d 167 (1960). It is well established that inadmissable hearsay is insufficient to raise any triable issues of fact sufficient to defeat summary judgment. Schwartz v. Nevatel Communications Corp., 778 NY2d 308 (2nd Dept. 2004); Zuckerman v. City of New York, 49 NY2d 557 (1980).

Self serving affidavits, meaning those which contradict previous deposition testimony, will not be considered by the Court in deciding summary judgment and cannot raise a triable issue of fact sufficient to defeat summary judgment. Gloth v. Brusco Equities, 1 AD3d 294 (1st Dept. 2003); Lupinsky v. Windham Construction Corp., 293 AD2d 317 (1st Dept 2002); Joe v. Orbit Industries, Ltd., 269 AD2d 121 (1st Dept. 2000); Kistoo v. City of New York, 195 AD2d 403 (1st Dept. 1993). While it is clear that self serving affidavits from plaintiff him/herself, contradicting prior testimony shall be summarily disregarded, Id., it is equally clear, that third-party affidavits, from witnesses, which contradict plaintiff's prior testimony shall be disregarded as well. Branham v. Loews Orpheum Cinemas, 31 AD3d (1st Dept. 2006) (Court discounted affidavit from an eyewitness when the same "was so completely at odds with plaintiff's deposition testimony." Eyewitness' affidavit was replete with facts inconsistent with plaintiff's prior testimony and court found that the same was tailored to raise a triable issue of f act on the issue of constructive notice.); Gomez v. City of New York, 304 AD2d 374 (1st Dept. 2003); Rodriguez v. New York City Hous. Auth., 304 AD2d 318 (2003); Perez v. South Park South Associates, 285 AD2d 402 (1st Dept. 2001); Philips v. Bronx Lebanon Hospital, 268 AD2d 318 (1st Dept. 2000). The rationale for disregarding self serving [*5]affidavits was articulated in Glick & Dolleck, Inc. v. Tri-Pac Export Corp., 22 NY2d 439 (1968) wherein the court stated that while the court is generally proscribed from weighing credibility, it is free to do so when it is clear that the "issues [proffered] are not genuine, but feigned." Id. at 441.

A defendant seeking summary judgment must establish prima facie entitlement to such relief as a matter of law by affirmatively, with evidence demonstrating the merits of the claim or defense, and not merely by pointing to gaps in plaintiff's proof. Mondello v. DiStefano, 16 AD3d 637 (2nd Dept. 2005); Peskin v. New York City Transit Authority, 304 AD2d 634 (2nd Dept. 2003).

Negligence and Duty

Absent a duty of care to the person injured, a party cannot be held liable in negligence. Palsgraf v. Long Island R.R. Co., 248 NY 339 (1928). In cases where there is a duty and that duty is breached, a party is held to have acted negligently. To impose common-law negligence, the tort, the duty breached, must be the proximate cause of the accident. Misirlakis v. East Coast Entertainment Props., 297 AD2d 312 (2nd Dept. 2002).

Liability for Injuries at Carnival or Amusement Park

It is well settled that liability for an injury sustained on an amusement or carnival ride is premised upon control, supervision, and or management of the injury causing ride. Trader v. Niagara Mohawk Power Corporation, 294 AD2d 836 (4th Dept. 2002); Burrows v. Union Free School District of the Tarrytowns, 250 AD2d 799 (2nd Dept. 1998); Mcgrath v. United Hospital, 167 AD2d 518 (2nd Dept. 1990). In Trader, the plaintiff sued after he was injured while working on a ride at an festival. Trader, supra. The court granted defendant, a power company summary judgment on grounds that, inter alia, the defendant "established as matter of law that it did not control, direct, or supervise the placement or maintenance of the rides an attractions..." Id. at 363. In Burrows, the court granted summary judgment to the sponsor of a school trip to an amusement park. Burrows, supra. The court held that defendant sponsor was not liable for an injury sustained by a student on a ride while at the amusement park insofar as defendant had no authority to control or supervise the ride and amusement park events. Id. In McGrath, summary judgment was granted to defendant when, with respect to an injury on an amusement park ride, defendant established that it "had connection with the operation, maintenance, management or control of the rides." McGrath, supra, at 193.

Premises Liability and Common Law Negligence

The common law dictates that a landowner is duty bound to maintain his or her property in a reasonably safe condition. Basso v. Miller, 40 NY2d 253 (1976). Logically, the law dictates that reasonable care be utilized in the maintenance of the property, taking into account all circumstances such as the likelihood of injuries to others, the seriousness of the injury, and the burden involved in avoiding the risk. Id. Whether a landlord is bound to maintain something within a premises and what a landlord has to maintain is prescribed by statute, regulation or contract. Rivera v. Nelson Realty, LLC, 7 NY3d 530 (2006); Ramos v. 600 w. 183rd St., 155 AD2d 333 (1st Dept. 1989). This duty also obligates a landowner to warn against dangerous conditions, existing on his land, known or [*6]reasonably ascertainable by him through the use of reasonable and ordinary care. Cupo v. Karfunkel, 1 AD3d (2nd Dept. 2003). No duty to warn exists, however, if the dangerous condition complained of is open and obvious and reasonably discernible through the use of one's own senses. Id.; Orlando v. Audax Construction Corp., 14 AD3d 500 (2nd Dept. 2005); Reuscher v. Pergament Home Centers, Inc., 247 AD2d 603 (2nd Dept. 1998); Jackson v. Supermarkets General Corporation, 214 AD2d 650 (2nd Dept. 1995). While the existence of an open and obvious condition negates a defendant's duty to warn of the same's existence, it does not negate a defendant's duty to abate said condition if the same is dangerous. Westbrook v. WR Activities-Cabrera Markewts, 5 AD3d 69 (1st Dept. 2004); Orellana v. Merola Associates, Inc., 287 AD2d 412 (1st Dept. 2001); Tuttle v. Anne LeConey, Inc. 258 AD2d 334 (1st Dept. 1999); Cupo v. Karfunkel, 1 AD3d (2nd Dept. 2003). Stated differently, an open and obvious condition does not negate a defendant's duty to maintain his premises in a reasonably safe condition and instead bears on whether the plaintiff, in failing to see what was readily observable through the use of his or her senses, is comparatively negligent. Id Additionally, Multiple Dwelling Law §78 imposes a duty upon the owner of multiple dwelling to keep the same in a reasonably safe condition. Mas v. Two Bridges Associates, 75 NY2d 680 (1990); Altz v. Leiberson, 233 NY 16 (1921); Bonifacio v. 910-930 Southern Boulevard, LLC, 295 AD2d 86 (1st Dept. 2002).

Premises liability is by no means predicated solely on ownership. Liability for a dangerous condition on or within a property, is instead predicated upon occupancy, ownership, control or special use of the premises at issue. Balsam v. Delma Engineering Corporation, 139 AD2d 292 (1st Dept. 1998); Valmon v. 4M & M Corporation, 291 AD2d 343 (1st Dept. 2002); Allen v. Pearson Publishing, 256 AD2d 528 (2nd Dept. 1998); Millman v. CitiBank, N.A., 216 AD2d (2nd Dept. 1995); Bruhns v. Antonelli, 255 AD2d 478 (2nd Dept. 1998); Kraemer v. K-Mart Corporation, 226 AD2d 590 (2nd Dept. 1996). Absent evidence of ownership, occupancy, control, or special use, liability cannot be imposed. Warren v. Wilmorite, Inc., 211 AD2d 904 (3rd Dept. 1995). Additionally, it is well established that no liability will be found absent proof that a defendant actually created the dangerous condition or, alternatively, had actual or constructive notice of the same. Piacquadio v. Recine Realty Corp., 84 NY2d 967 (1994); Bogart v. F.W. Woolworth Company, 24 NY2d 936 (1969); Armstrong v. Ogden Allied Facility Management Corporation, 281 AD2d 317 (1st Dept. 2001); Wasserstrom v. New York City Transit Authority, 267 AD2d 36 (1st Dept. 1999); Allen v. Pearson Publishing, 256 AD2d 528 (2nd Dept. 1998); Kraemer v. K-Mart Corporation, 226 AD2d 590 (2nd Dept. 1996).

A defendant is charged with having constructive notice of a defective condition when said condition is visible, apparent, and exists for a sufficient length of time prior to the happening of an accident to permit the defendant to discover and remedy the same. Gordon v. American Museum of Natural History, 67 NY2d 836 (1986). The notice required must be more than general notice of any defective condition. Id.; Piacquadio v. Recine Realty Corp., 84 NY2d 967 (1994). The law requires notice of the specific condition alleged at the specific location alleged. Id. A general awareness that a dangerous condition may exist, is insufficient to constitute notice of a particular condition alleged to have caused an accident. Piacquadio v. Recine Realty Corp., 84 NY2d 967 (1994). Instead, liability can only be predicated on defendant's failure to remedy a dangerous condition after actual or constructive notice of the condition. Id. [*7]

Another way in which constructive notice can be established is by establishing the existence of a recurring condition. A defendant is charged with constructive notice of a dangerous condition when said defendant has actual notice of an ongoing or recurring condition. Chianese v. Meier, 98 NY2d 270 (2002); Uhlich v. Canada Dry Bottling Company of New York, 305 AD2d 107 (1st Dept. 2003); Simoni v. 2095 Cruger Associates, 285 AD2d 431 (1st Dept. 2001). When a recurring condition is alleged and proven, defendant is charged with constructive notice of each recurrence. Id. To recover, plaintiff must prove that the defendants were aware of the specific recurrent condition alleged. Anderson v. Central Valley Realty Company, 300 AD2d (2nd. Dept 2002). Plaintiff must of course establish that the recurrent condition existed on the date of plaintiff's accident. Zanki v. Cahill, 2 AD3d 197 (1st Dept. 2003). Thus, not only must plaintiff establish that a recurrent condition existed prior to his accident, he must also establish actual notice of at least one occurrence of the condition and the existence of the condition on the date in question.

General knowledge that a person or persons routinely spill water on the ground thereby creating a dangerous condition is not a notice of a recurrent condition. Gloria v. MGM Emerald Enterprises, Inc., 298 AD2d 355 (2nd Dept. 2002). Instead, this is merely a general awareness that people might wet the floor. Id. under these circumstances, before liability can be imputed, actual or constructive notice of each occurrence is required. Put another way, a recurring condition must involve a specific defect on the premises which contributes or causes a dangerous condition to occur. In Gloria, plaintiff slipped and fell on a wet floor. Id. It was alleged that the floor became wet by patrons spilling drinks within the premises and that defendants were aware that patrons routinely spilled drinks on the ground. Id. it was further alleged that this was a recurrent condition. Id. The Court rejected the notion that these facts gave rise to a recurrent condition. Id. Unlike a leaky machine, unstable display, or leaks which caused rainwater to accumulate on stairs, a condition such as people spilling drinks on the ground cannot be guarded against in advance and requires notice of each occurrence to be remedied. Id. The Court held that this was not a recurrent condition. Id.

It is axiomatic that before negligence can be found it must be established that the accident causing instrumentality constitutes a dangerous condition, defect, or trap. Crawford v. Pick Quick Foods, Inc., 300 AD2d 431 (2nd Dept. 2002); Garry v. Rockville Centre Union Free School District, 272 AD2d 437 (2nd Dept. 2000); Reynolds v. Reynolds, 245 AD2d 498 (2nd Dept. 1997).

On a motion for summary judgment a defendant establishes prima facie entitlement to summary judgment when he or she establishes a lack of notice, actual or constructive. Hughes v. Carrols Corporation, 248 AD2d 923 (3rd Dept. 1998); Edwards v. Wal-Mart Stores, Inc., 243 AD2d 803 (3rd Dept. 1997); Richardson-Dorn v. Golub Corporation, 252 AD2d 790 (3rd Dept. 1998). If defendant meets his burden it is then incumbent on plaintiff to tender evidence indicating that defendant had actual or constructive notice. Strowman v. Great Atlantic and Pacific Tea Company, Inc., 252 AD2d 384 (1st Dept. 1998).

Independent Contractors

It is well settled that one who hires an independent contractor to perform work or provide services is not liable for said contractor's negligent acts. Kleenman v. Rheingold, 81 NY2d 270 [*8](1993); Rosenberg v. Equitable Life Assurance Society of the United States, 79 NY2d 663 (1992); Feliberty v. Damon, 72 NY2d 112 (1988); Goodwin v. Comcast Corporation, 42 AD3d 322 (1st Dept. 2007); (Employer not liable for acts of independent contractor where the same did not control the work being performed and where owner retained nothing more than general supervisory powers); Adams v. Hilton Hotels, Inc., 15 AD3d 175 (1st Dept. 2004); Saini v. Tonju Associates, 299 AD2d 244 (1st Dept. 2002); Stagno v. 143-50 Hoover Owners Corp., 48 AD3d 548 (2nd Dept. 2008) (Owner of premises not liable for acts of contractor hired to perform work in and around the premises, when the owner did not supervise or control the work of the independent contractor.); Mercado v. Slope Associates, 246 AD2d 581 (2nd Dept. 1998) (Owner of premises not liable for acts of contractor hired to perform work in and around the premises, when the owner did not supervise or control the work of the independent contractor.); Zedda v. Albert, 233 AD2d 497 (2nd Dept. 1996) (Owner not liable for acts of an independent contractor where the owner did not give the independent contractor direction or instruction.). The basis for the rule is that one who hires an independent contractor does not have the right to control the manner in which the work is done. Id. This relationship is to be distinguished from a master servant relationship where the master, insofar as he retains control over the servant, is vicariously liable for the acts of the servant. Kleenman v. Rheingold, 81 NY2d 270 (1993); Goodwin v. Comcast Corporation, 42 AD3d 322 (1st Dept. 2007); Melbourne v. New York Life Insurance Co., 271 AD2d 296 (1st Dept. 2000).

There is of course, an exception to the general rule. It is well settled that he who hires an independent contractor is liable for said contractor's acts when the contractor is hired perform work that the employer is has a duty to perform and said duty is nondelegable. Kleenman v. Rheingold, 81 NY2d 270 (1993); Rosenberg v. Equitable Life Assurance Society of the United States, 79 NY2d 663 (1992); Feliberty v. Damon, 72 NY2d 112 (1988). A duty is nondelegable when "the responsibility is so important to the community that the employer should not be permitted to transfer it to another." Kleenman v. Rheingold, 81 NY2d 270, 275 (1993). The most often discussed non-delegable duties are those duties imposed by statute or the common law and where the work at issue is inherently dangerous. Kleenman v. Rheingold, 81 NY2d 270 (1993)(Court held that service of process was a duty imposed upon an attorney and could not be delegated to a third-party and as such attorney who employed a process server was vicariously liable for his negligence in effectuating process.); Rosenberg v. Equitable Life Assurance Society of the United States, 79 NY2d 663 (1992) (Court held that the administration of an EKG was not an inherently dangerous event and as such insurance company who delegated the same to a doctor was not liable for the doctor's negligence.); Feliberty v. Damon, 72 NY2d 112 (1988) (Court held that insured who hired counsel to defend its insured was not vicariously liable for counsel's negligence in the representation provided to insured. Delegation of defense to counsel not a nondelegable duty.). Work is inherently dangerous and thus its delegation does not absolve an employer of liability for an injury sustained by the acts of an independent contractor if the work involves a special risk of harm to others, inherent in the nature of the work itself. Rosenberg v. Equitable Life Assurance Society of the United States, 79 NY2d 663 (1992). Liability for an injury arising from the delegation of inherently dangerous work also requires that the employer have actual or constructive knowledge of the risks involved prior to employing the independent contractor. Id. It has often been stated that he who hires an independent contractor is liable if the employer is negligent in selecting the contractor or in instructing or supervising the same. Kleenman v. Rheingold, 81 NY2d 270 (1993); Adams v. Hilton Hotels, Inc., [*9]15 AD3d 175 (1st Dept. 2004). However, insofar as under these circumstances the employer is liable for his own acts, it is not really an exception to the rule. . Kleenman v. Rheingold, 81 NY2d 270 (1993)

Whether a party is an independent contractor as opposed to an employee often turns on whether the employer exercised control over the work performed by the contractor. Goodwin v. Comcast Corporation, 42 AD3d 322 (1st Dept. 2007); Leetoyzer v. New York Life Insurance Co., 271 AD2d 296 (1st Dept. 2000; Gfeller v. Russo, 45 A.D3d 1301 (4th Dept. 2007); Harjes v. Parisio, 1 AD3d 680 (3rd Dept. 2003); Greene Osterhoudt, 251 AD2d 1998). Other factors to consider in determining whether a person is an independent contractor is the extent to which the employer is involved in the work being form, namely whether the same furnishes tools, and equipment, whether taxes are withheld and how the contractor is paid. Id. The mere retention of general supervisory powers by the employer over the employee does not mean that the relationship is not one of employer/independent contractor, and thus is insufficient to impose liability upon an employer for the acts of the independent contractor. Goodwin v. Comcast Corporation, 42 AD3d 322 (1st Dept. 2007); Leetoyzer v. New York Life Insurance Co., 271 AD2d 296 (1st Dept. 2000); Santella v. Andrews, 266 AD2d 62 (1st Dept. 1999).

Discussion

Allied's motion seeking summary judgment in its favor is hereby granted.

A review of the evidence indicates that Allied's liability can only be premised on three distinct legal theories, all related to Allied's involvement with the festival as its organizer. First, based upon the degree of control exercised by Allied, Allied may bear liability under the law governing liability for injuries to patrons at carnivals, festivals and amusement parks. Second, also based upon Allied's degree of control and/or occupancy of the location herein, Allied may bear liability under traditional notions of premises liability. Lastly, also based upon the degree of control exercised by Allied, particularly supervision , if any, over the actions of Nevins, Allied may be vicariously liable for the acts and/or commissions of Nevins, its contractor.

With regard to carnivals, festivals, and amusement parks, liability for injuries to patrons at rides thereat is premised upon control, supervision, and or management of the injury causing ride.

With regard to premises liability, the common law dictates that a landowner is duty bound to maintain his or her property in a reasonably safe condition. Logically, the law dictates that reasonable care be utilized in the maintenance of the property, taking into account all circumstances such as the likelihood of injuries to others, the seriousness of the injury, and the burden involved in avoiding the risk. Additionally, Multiple Dwelling Law §78 imposes a duty upon the owner of multiple dwelling to keep the same in a reasonably safe condition. Premises liability is by no means predicated solely on ownership. Liability for a dangerous condition on or within a property, is instead predicated upon occupancy, ownership, control or special use of the premises at issue. Absent evidence of ownership, occupancy, control, or special use, liability cannot be imposed. [*10]

With regard to liability for the acts of others, it is well settled that one who hires an independent contractor to perform work or provide services is not liable for said contractor's negligent acts. The basis for the rule is that one who hires an independent contractor does not have the right to control the manner in which the work is done. This relationship is to be distinguished from a master servant relationship where the master, insofar as he retains control over the servant, is vicariously liable for the acts of the servant. There is of course, an exception to the general rule. It is well settled that he who hires an independent contractor is liable for said contractor's acts when the contractor is hired perform work that the employer is has a duty to perform and said duty is non-delegable. A duty is non-delegable when the responsibility is so important to the community that the employer should not be permitted to transfer it to another. The most often discussed non-delegable duties are those duties imposed by statute or the common law and where the work at issue is inherently dangerous.

With respect to evidence, Allied submits plaintiff's deposition transcript, wherein she testified that she was injured while using the slide at a festival on a public street. Plaintiff saw nothing indicating who owned the slide or operated the same. Allied also submits Kennedy's deposition transcript, wherein he testified that while Allied was hired to provide rides at the festival herein, said task was delegated to Nevins. Allied was not at the scene of the festival herein and further provided its own employees to operate the slide herein.

Thus, the evidence tendered by Allied establishes prima facie entitlement to summary judgment insofar as it evinces that Allied had no control over the ride herein or over the location where said ride sat so as to impute liability upon Allied. The evidence also establishes that Nevins was Allied's independent contractor and that not only did Allied have no control over Nevins' work, but that the activity delegated to Nevins was not non-delegable.

As discussed above, in order to be liable for an injury to a patron at an amusement part, the alleged tortfeasor must be controlling, supervising, or managing the ride which caused the injury claim. In this case, the evidence tendered by Allied evinces that Allied had absolutely no control of the slide herein, nor did it manage or supervise it's operation. Thus, Allied demonstrates that it is not liable under the law governing injury to patrons at an amusement park and on a ride located thereat. For this reason, namely the absence of management or control of the location herein, Allied also demonstrates that it bears no liability under the law governing premises liability. Liability pursuant thereto is premised upon ownership, control, or occupancy. Clearly, this was a public street not owned by Allied. Additionally, the evidence tendered by Allied evinces that it was not ever present at the location herein, so as to occupy the same, let alone control it. Thus, Allied establishes that it is not liable under the law governing premises liability. Lastly, insofar as the evidence establishes that Nevins was Allied's independent contractor, in that Allied did not control or direct Nevins' operation of the slide herein, it is clear, that Allied cannot be vicariously liable for any tortious acts committed by Nevins. To the extent that the activity herein, the use of the slide herein [*11]was not inherently dangerous and no duty upon Allied is imposed by statute, the duty [FN1] delegated to Nevins' was not non-delegable and thus could, as it was, delegated by Allied. Thus, Allied establishes that it is not vicariously liable for the acts of Nevins. Based on the foregoing, Allied establishes prima facie entitlement to summary judgment.

Plaintiff's opposition fails to raise an issue of fact sufficient to preclude summary judgment. Plaintiff tenders no evidence and cites no law warranting denial of the instant motion. Allied's motion is hereby granted. It is hereby

ORDERED that plaintiff's complaint and any and all cross-claims be hereby dismissed with prejudice against Allied. It is further

ORDERED that Allied serve a copy of this Order with Notice of Entry upon all parties within thirty (30) days hereof.

This constitutes this Court's decision and Order.

Dated :October 6, 2009

Bronx, New York

________________________________Nelson S. Roman, J.S.C. Footnotes

Footnote 1:While it is true that Labor Law §870-a imposes a duty of care with regard to rides at carnivals, namely that they be operated so as to prevent injury, such a duty, as per Labor Law §870-b is imposed only upon those who manage the ride and/or their employees.