Aysha Collection, Inc v Laser Hair Removal USA, Ltd.

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Aysha Collection, Inc v Laser Hair Removal USA, Ltd. 2017 NY Slip Op 31319(U) June 16, 2017 Supreme Court, New York County Docket Number: 156300/2013 Judge: Kelly A. O'Neill Levy Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 06/20/2017 10:24 AM 1] NYSCEF DOC. NO. 136 INDEX NO. 156300/2013 RECEIVED NYSCEF: 06/20/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART .19 -------------------,------------------------------------------------------x AYSHA COLLECTION, INC. and UTICA FIRST INSURANCE COMPANY [l}slo ASAR INDUSTRIES INC. and A YSHA COLLECTIONS INC. Plaintiffs, Index No.156300/2013 -againstSeq. No. 005 LASER HAIR REMOVAL USA, LTD., LASER HAIR REMOVAL, USA, U;''LTD., and LASER HAIR REMOVAL USA, III, LTD., Decision and Order Defendants. -------------------.------------------------------,-------------.-"'"----------x LASER HAIR REMOVAL USA, LTD., LASERHAiR REMOVAL, USA, II, LTD., and LASER HAIR REMOVAL USA, III, LTD., Third-Party Plaintiffs, · -against109 W. 38 ST LLC and JULIA McINTOSH, Third,..Party Defendants. ---------------------------------------------------~---------------------x Kelly O'Neill Levy, J.: . Third-party defendant 109 W. 38 ST LLC ("109 West") moves pursuant to CPLR 3212 for an order granting summary judgment on the common-law negligence, indemnity .and contribution claims brought against it by Laser Hair Removal USA, Ltd.; Laser Hair Removal, USA, II, Ltd. ("Laser Hair Removal II"), and Laser Hair Removal USA, III, Ltg. (collectively, Laser Hair Removal") 1, as well as for summary judgment on its counterclaims for contractual indemnity and breach of contract made Laser Hair Removal II was the lessee of the subject premises, Suite 401, located at 109 West 38 Street in Manhattan, and the other Laser Hair Removal entities are related companies. · Page 1 of14 1 2 of 15 [*FILED: NEW YORK COUNTY CLERK 06/20/2017 10:24 AM 2] NYSCEF DOC. NO. 136 INDEX NO. 156300/2013 RECEIVED NYSCEF: 06/20/2017 against Laser Hair Removal II. Plaintiff Aysha Collection, Inc. ("Aysha") cross-moves pursuant to CPLR 3212 for an order granting summaryjudgment on its negligence claim against Laser Hair Removal II. Co-plaintiffs Utica First. Insurance Company a/s/o Asai Industries Inc. and Aysha Collections Inc. (together, "Utica First") support Aysha's cross-motion, and request thatif Aysha is ·granted summary judgment, then Utica First, as subrogee, is likewise entitled to summary judgment on, its subrogation claim. Laser Hair Removal opposes. "· BA<:'.KGROUND Plaintiff Aysha brought the primary action against Laser Hair·Removal for property damages it allegedly incurred due to a flood on orabout December 12, 2012 at 109 West 38th Street in Manhattan (the "building"). Utica First thereafter commenced a subrogation action against Laser Hair Removal II (Utica First Insurance Company et. al. v. Laser Hair Removal USA II, LTD, Index No. 158348/2013), which Justice Anil C. Singh consolidated with the primary action by order dated July 9, 2014. Prior to consolidation, Laser Hair Removal commenced a third-:party action against 109 West, the owner of the building wherein the incident occurred, and Julie Mclntosh2 , who rented a c~mmunal room from Laser Hair Removal II on the fourth floor of the building. By order dated June 30, 2016, this court granted on default Ms. Mcintosh's motion for summary judgment dismissing the third-party complaint against her, and she is no longer a party to this action. The third-party claims that remain are against 109 West for common-law negligence, indemnity and contribution and against Laser Hair Removal for contractual indemnity and breach of contract. Plaintiff Aysha has made no claims against 109 West. , Aysha is a third-floor tenant in the building while Laser Hair Removal II was a fourth-floor tenant in the same building where it operated a salon at the time of the incident. ·Plaintiffs and 109 West 2 Incorrectly sued as "Julia" Mcintosh. See, e.g., Affidavit of Julia Mcintosh in Support of Motion for Sumr:nary Judgment (Mot. Seq. 004). Page 2of14 3 of 15 [*FILED: NEW YORK COUNTY CLERK 06/20/2017 10:24 AM 3] NYSCEF DOC. NO. 136 INDEX NO. 156300/2013 RECEIVED NYSCEF: 06/20/2017 contend that an employee or subtenant of Laser Hair Removal left a hairdressing sink faucet running which resulted in water overflowing, thereby causing flooding and subsequent property damage to · Aysha on the floor below. Aysha was insured by Utica First at the time of the incident and submitted a claim for damages. , In opposition to the motion, Laser Hair Removal contends that there is only evidence that independent contractors, for whom it is not liable, were present at the time of the incident and that there is a question of fact as to whether a broken pipe caused the flood. The relevant testimony is as follows. Deposition Testimony of Les/aw Jarych (Handyman) Leslaw Jarych, a· handyman at the building, testified that in December 2012, after receiving a complaint from Aysha about water leaking from the ceiling in its third-floor unit, he went to the fourth floor above where he observed water overflowing from a.hairdresser's sink in Laser Hair Removal II's premises.· He turned off the faucet and found about half an inch to an inch of water on the floor, which he tried to clean up. He testified that he was told by the owner of the fourth-floor salon-not Joan Fasano 3-that anew worker forgot to turn offt~e faucet. In addition, Mr. Jarych te~tified that while he had performed a repair on a "regular" sink on the fourth t1oor, he had not performed any repairs on the hairdresser's sink that had been overflowing and that no one had complained to him about that sink. Deposition Testimony of Melvin Eason, Jr. (Maintenance Man) Melvin Eason, Jr., who was employed as a maintenance man by various management companies that took care of the building, testified that there was no water issue on the third or fourth floor during the course of his shift when he conducted his check of the floors on the evening before the flood was discovered ai;id that he learned of the incident when he went to the building later that day. He testified 3 As discussed below, Joan Fasano is the principal of Laser Hair Removal. Page 3of14 4 of 15 [*FILED: NEW YORK COUNTY CLERK 06/20/2017 10:24 AM 4] NYSCEF DOC. NO. 136 INDEX NO. 156300/2013 RECEIVED NYSCEF: 06/20/2017 that .he was. informed by ."Lester" that water·was-overflowingfrom thesitik hi Suite 401 and that . "Les~er'' t~~ed it off by tuming.the·knobs afthe top of the sink. 4 t-,fr. Eason also testified that he had ~ever obs~rved anything wrong wfth the hairdresser's s.ink at issue and was never told of any complaints about that sink. · -, ... - Deposition Testimony of Julie Mcintosh . _.~ Julie Mcintosh Jestified,thati.n or about 2008; she began.ten.ting -sp~ce from Laser Hair Removal ·II. She brought in her hairdresser's sink -but did not pay for- the. installation; rather, the installation was ' -. . ' ."' ~· . . i _ done through Joan Fasano, the pri11cipalofLaser- Hair Removal. Ori December 11, 2012, Ms. Mcintosh . -. . . . entered Laser Hair Remova1Jrs premises atapproximately 7:25 p.iri.; dropped off her rent payment, browsed thtqtighthe magazine~-·ihth~·reception area, and left ;Additionally, Ms. Mcintosh testified that . '• ~ '- .. ""' . ~- .· she did not have any complaints about Suite LfQ 1... DepositiiJn Testimony of Joan_ Fasano Joan Fasano, the aforeme~tioned p'rincipal of Laser Hair Removal, testified that Laser Hair ...,. . - " .·Removal II had no employees and that she and independent contractors hired by Laser Hair Removal II . . . . . ,_ carried out the b~siiless ofLii.ser Hair Removal. She testified that on-either December 12, 2012 or .·December· 13, 2012, s~meone, whom she could not remember·, ~aHed her and told her that there was a water problem caused by a broken pipe and asked her to come over. She went to the building the . following day and in the salcm.'s communai'room she ~aw a broken pipe and a sign on the wall that said, ' _.,. •" . . ~ . . . "Brokefi,Pipe.Do N'otUse." She dilnot kriowwhetherthe brokeri pipe caused the flood. Ms. Fasano ' 'f ~ . ; -. . ~ ~ _, ' - • also testified that she was Informed by Ms, 1 Mclntosht!1at· maintenance people were going to install her hairdresser's sink. 4 The corroborativete;timony of Mr. Jarych indiCatesthat Mr. Eas.on, k is referring to "I,,eslaw" Jarych when he mentioned "Lester." .. · · · ·. · Page4of14 5 of 15 [*FILED: NEW YORK COUNTY CLERK 06/20/2017 10:24 AM 5] NYSCEF DOC. NO. 136 INDEX NO. 156300/2013 RECEIVED NYSCEF: 06/20/2017 ARGUMENTS Plaintiffs and. 109 West argue that in light of the above testimony there is sufficient evidence to establish that damage to the third floor was caused by a flood from a hairdresser's sink negligently left running, and that Ms. Fasano's testimony is insufficient to raise triable issues of fact. In its opposition, Laser Hair Removal contends that there is no evidence as to who left the faucet ·running, and that there is only evidence that independent contractors, who rented space from Laser Hair Removal, were present the night the faucet was left on. Laser Hair Removal further argues that because Ms. Fasano testified that she saw a broken pipe and sign that said "Broken Pipe. Do Not Use" and because General Obligations Law 5-321 voids lease provisions_ whereby a landlord seeks to be indemnified for its own negligence, l 09 West cannot be i1;1demnified as it did not fix the broken pipe and there is a question of fact as to the causation. of the flood .. Laser Hair Removal .also argues that the motions must be denied because Aysha has failed to identify which Laser Hair Removal entity is negligent and also because 109 West is seeking contractual indemnification with some Laser Hair Removal entities with which it does not have a contractual relationship. DISCUSSION At the outset, the court addresses Laser Hair Removal's contention that the motion should be denied because the parties have failed to identify the proper entity. Aysha correctly argues in its affirmation in support that it identified Laser Hair Removal II as the allegedly negligent party. A review of Aysha's motion shows that it specifically moves pursuant to CPLR 3212 for summary judgment a~ainst "defendant LASER HAIR REMOVAL, USA,II,LTD" only. In addition; 109 West argues in its affirmation in support that its lease is w.ith Laser Hair Re!rtoval II and. that Laser Hair Removal II Page 5of14 6 of 15 [*FILED: NEW YORK COUNTY CLERK 06/20/2017 10:24 AM 6] NYSCEF DOC. NO. 136 INDEX NO. 156300/2013 RECEIVED NYSCEF: 06/20/2017 breached its contrad with 109 West. Thus, Laser Hair Removal's arguments that Aysha and 109 West's summary judgment motions should be denied for failure to identify the proper entity are unavailing. On a motion for summary judgment, the moving party has the burden of offering sufficient . - ~ - evidence to make a prima facie showjng that there is no triable material issue of fact. Jacobsen v. NY City Health & Hosps. Corp., 22 N.Y.3~ 824, 833 (2014). ·Once the movant makes that showing, the burden shifts to the n<;>n-moving party to establish, through evidentiary proof i'i:i admissible form, that there exist material factual issues. Zuckerman v. City ofNew York, 49 N.Y.2d 557 (1980). In determining a motion for summary judgment,- the court must view the ·evidence in the light most favorable to the non-moving party. Henderson v. City of New York, 178 A.D.2d 129, 130 (1st Dep't 1997). The court's function on a motion for summary judgment is issue-finding, rather than making credibility determinations or findings offact. Vega V. Restani Const. Corp., 18 N.Y.3d 499, 503, 505 '(2012). The elements of a cause of acti.6n in negligence are ( 1) the existence of a duty; (2) a breach of this duty; and (3) injury as a result of the breach. Rodriguez v. Budget Rent A Car Sys., Inc., 44 A;D.3d 216, 221 (1st Dep 't 2007). Where a property owner moves for summary judgment in a premises liability action, the property owner bears the initial burden of establishing that it neither created nor had . actual or constructive notice of the allegedly defective condition. Sheehan v. JJ Stevens & Co., 39 A.D.3d 622 (2d Dep't 2007). To constitute constructive notice, the defective condition must be both visible and apparent and it must existJor a sufficient length of time prior to the accident to allow a property owner to discover and remedy it. Gordon v. Am. Museum ofNat. History, 67 N.Y.2d 836, 837 (1986). Page 6of14 7 of 15 [*FILED: NEW YORK COUNTY CLERK 06/20/2017 10:24 AM 7] INDEX NO. 156300/2013 NYSCEF DOC. NO. 136 RECEIVED NYSCEF: 06/20/2017 109 West's Motion . - Plaintiff Aysha has not made any claims for negligence against 109 West but defendants Laser Hair Removal assert in their third-party complaint that 109 West is negligent. The testimony of Mr. - Jarych, Mr. Eason, and Ms. Mcintosh is sufficient to establish that 109 West did not create or have actual or constructive notice of any defective condition that caused the flooding incident. See Martinez v. Hunts Point Co-op. Market, Inc.: 79 A.D.3d 569 (1st Dep't 2010). In Martinez, the First Department held that an out-of-possession landlord did not have actual or constructive notice of a condition that allegedly led to the injury of a tenant's employee where the general manager of the landlord had not observed damage to the defective mechanism and had not received any complaints prior to the date of the incident. Testimony from the landlord's general manger and from a vice_ president of the tenant that neither had observed damage to the mechanism at issue and had not received complaints as to same was sufficient to establish prima facie that the landlord.did not have actual or constructive notice of the allegedly dangerous condition. The burderi then shifted to the plaintiff to raise evidence sufficientto rebut the landlord's prima facie showing that it did not have actual or constructive notice. Upon the plaintiffs failure to do so, the Martinez court granted third-party defendant landlord's motion for summary judgement dismissing the complaint against it. In theinstant cas~, Mr. Jarych testified that whi-le he had performed a repair on a regular sink on the fourth floor, no one had complained to him about the hairdresser's sink there. Mr. Eason testified that he had never observed anything wrong with the hairdresser's sink and was never told of any complaints about that sink. Ms. Mcintosh testified that she had no complaints concerning Suite 401. Taking the evidence in the light most favorable to the thitd-'party plaintiffs and assuming that Ms. Page 7of14 8 of 15 [*FILED: NEW YORK COUNTY CLERK 06/20/2017 10:24 AM 8] NYSCEF DOC. NO. 136 INDEX NO. 156300/2013 RECEIVED NYSCEF: 06/20/2017 Fasano sa~ the broken pipe 5, her testimony neither establishes that the broken pipe was the cause of the flood nor that 109 West had notice of the broken pipe prior to the incident or that fo9 West was the cause of the broken pipe before the incident. Furthermore, there is no evidence 109 West clogged the hairdresser's sink or failed to turn off its faucet, rather; the testimony indicates that an employee, subtenant, or independent contractor of Laser Hair Removal II neglected to tum off the faucet. See Litwack v. Plaza Realty Investors, Inc., 11 N. Y.3d 820 (2008)' (landlord not liable for damages resulting from toxic mold where tenant did not provide sufficient notice to landlord of conditions that could give rise to hazardous mold). LaserHair Removal further seeks common-law indemnification and/or contribution from 109 West. Com_mon-law indemnification is a restitution concept which allows ioss to be shifted from a party liable based upon its status to a party at fault because failure to do so would result in unjust emichment. McCarthy v. Turner Const., Inc., 17 N.Y.3d 369, 375 (2011). It is well settled that those actively at fault in bringing about the damage shall bear the imposition 6f indemnification obligations. Id. Because common.,.iaw indemnification is predicated upon vicarious liability without actual fault by the indemnitee, Aiello v. Burns Int'/ Sec. Servs. Corp., 110A.D.3d 234, 247 (1st Dep't 2013), the proposed indemnitee cannot obtain common-law indemnification unless it is found to be vicariously liable without evidence of any negligence or aCtual supervision on its own part. McCarthy, 17 N. Y .3d at 377-78. A claim for common-law contribution requires that the party from which contribution is sought actually cont~ibuted to the alleged injuries by breaching a duty either to the injured party or to the party seeking contribution. Jehle v. Adams Hotel Assocs:, 264 A.D.2d 354, 355 (1st Dep't 1999). 5 She is the only person to testify to that condition. Page 8 of14 9 of 15 [*FILED: NEW YORK COUNTY CLERK 06/20/2017 10:24 AM 9] NYSCEF DOC. NO. 136 INDEX NO. 156300/2013 RECEIVED NYSCEF: 06/20/2017 As discussed above, 109 West has proffered sufficient evidence to show it was not actively at fault, and Laser Hair Removal does not offer sufficient evidence to create a triable issue of fact regarding thenegligence of J 09 West. Furthermore, there is a question of fact as to whether Laser Hair Removal itself was negligent and thus atfault. Accordingly, 109 West's motion for summary judgment di~missing the third-party complaint it is granted. 109 West counterclaims for contractual indemnity from Laser Hair Removal II and further argues that Laser Hair Removal U breached: its contract with 109 West because it failed to add 109 West as an insured. Paragraph 45 of the Rider to the lease entitled Contractual Indemnification of Landlord states, in relevant part, · "The Tenant hereby agrees to save the Landlord· harmless and indemnified from and against all injury, loss, costs: claims, losses, liabilities, damages and expenses to any person or property, while on the demised. premises or in the building in whichthe demised premises are situated, arising from, related to or connected with the conduct and operations of the business of the Tenant in the demised premises or caused by an act or omission of the Tenant, its agents, servants, contractors or employees. The .tenant· shall maintain with responsible insurance companies licensed to.do business in the State ofNew York and approved by the Landlord and the Tenant (as their interests may appear) against all claims, demands or action for personal injury, death or property damage in an amount of not less than ONE MILLION DOLLARS. ($1,000,000.00) for any one occurrence, made by or on behalf of any person or persons, firms or corporation, arising from, related to or connected with the conduct and operations of the business of the Tenant in the demised premises or caused by an act or omission of the Tenant, its agents, servants, contractors, or employees. Each such policy of insurance shall designate the Landlord as an additional named insured and shall be in a form satisfactory to the Landlord .... As used herein, the word "expense" includes attorneys' fees and disbursements." See Ex. E, Aff. In Supp. Ort a claim for contradual indemnification, the language ofthe contract's·provisions determines the right to contractual indemnity. Carroll v. 1156 APF LLC, 2011 WL 4443507 (Sup. Ct., New York County 201 l) {citingSm~th v. Broadway·110 Devs., LLC, 80 AD.3d 490, 491 [1st Dep't 2011]). Additionally, an indemnitee must show that it is free from negligence, but it does not need to show that Page 9of14 10 of 15 [*FILED: NEW YORK COUNTY CLERK 06/20/2017 10:24 AM 10] NYSCEF DOC. NO. 136 INDEX NO. 156300/2013 RECEIVED NYSCEF: 06/20/2017 the proposed indemnitor is negligent.Id~ (citing Uluturk v. City of New York, 298 AD2d 233, 234 [1st Dep't 2002]). As discussed above, there is no evidence that 109 West was negligent. Thus, 109 West is entitled to attorney's fees and disbursements from Laser Hair Removal II pursuant to the lease terms if ( 1) the claims at bar arose in connection with the conduct and operations of Laser Hair Removal II' s business or (2) were caused by an act or omission ofLaser Hair Removal II'.s agents, servants, contractors or employees. While the actual cause of the incident has not been affirmatively assigned to one of Laser Hair Removal II's "agents, servants, contractors or employees," the incident arose from a . sink, the utilization of which is clearly connected to the conduct and operation of Laser Hair Removal II' s business. Contra Ali v. Sequins Intern., Inc., 31 Misc.3d 1244(A) (Sup. Ct., Queens County 2011) (where indemnity clause in lease relates to liability "arising out of or based upon, related to or in any way connected with the use or occupancy of the premises or the conduct or operation of the tenant's business," landlord not entitled to indemnification for amounts paid in connection with injury to_ pedestrian walking on defective sidewalk outside business). 109 West has failed to establish a prima facie entitlement to judgment on its claim against Laser Hair Removal II for breach of the requirement to add 109 West as an additional in;mred on its insurance policy. There is no allegation in an affidavit by a person with knowledge that Laser Hair Removal II failed to so add 109 West. The statement, made only by counsel in 109 West's affirmation, is of no probative value. See Hunter Roberts Constr. Group, LLC v Arch Ins. Co., 75 AD3d 404, 411 (1st Dep't 2010). Thus, the burden never shifted to Laser Hair Removal II to demonstrate otherwise or to show the · existence of an issue of fact. Page 10of14 11 of 15 [*FILED: NEW YORK COUNTY CLERK 06/20/2017 10:24 AM 11] NYSCEF DOC. NO. 136 INDEX NO. 156300/2013 RECEIVED NYSCEF: 06/20/2017 Aysha's Motion Plaintiff Aysha cross-moves for summaryjudgment on its negligence claim against defendant Laser Hair Removal II. Aysha argues that it is entitled to summary judgment pursuant to the doctrine of res ipsa loquitur. For aplaintiff to establish a prima facie case of negligence pursuant to the doctrine of res ipsa loquitur, it must establish that: (1) the event must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of . ' . the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff. Dermatossian v. New York City Transit Auth., 67 N.Y.2d 219, 226 (1986) (internal quotations omitted). If a plaintiff can-establish all three elements of the doctrine ofres ipsa loquitur, an inference of negligence is permitted but not compelled. See Crockett v. Mid-City Mgmt. Corp., 27 A.D.3d 611, 612 (2d Dep't 2006).· If there are questions of fact surrounding any of the three requirements for res ipsa loquitur, a denial of summary judgment is warranted. See Morejonv. Rais Const. Co., 7 N.Y.3d 203, 212 (2006) ("If that evidence presents a question of fact as to the defendant's liability under the (threepart] test for res ip~aloquitur," summary judgment should be denied). Without reaching the merits of the case concerning elements (1) and (3),·the court finds that element (2) has not been established .. While it is undisputed that Laser Hair Removal II occupied the fourth floor suite above Aysha's unit, and the testimony establishes that the source of water came from the suite, there remain questions of fact as· to whether Laser Hair Removal II had (1) exclusive legal control over the Suite as it rented the space to other persons, and (2). exclusive sole custody and control . ' . of the hairdresser's sink given that it did not bring in the sink and there is a dispute as to who oversaw its installation. Page 11of14 12 of 15 [*FILED: NEW YORK COUNTY CLERK 06/20/2017 10:24 AM 12] INDEX NO. 156300/2013 NYSCEF DOC. NO. 136 RECEIVED NYSCEF: 06/20/2017 Generally speaking, a principal' is liable for the acts of an employee, but not those of an independentcontr~ctor, due to the lack of control that a principal typically has over the manner in which an independent contractor works. 3 See, e.g., Goodwin v. Comcast Corp., 42 A.D.3d 322, 322 (1st Dep't 2007). Distinguishing between an independent contractor and an employee requires a case by case analysis and typically turns on questions of fact. See; e;g., Anik11shina .v. Moodie, 58 A.D.3d 501, 504 (1st Dep't 2009) (citing Lazo v. Mak's Trading Co:., 199 A.D.2d 165, 166 [1st Dep"t 1993]). A critical part of the fact analysis is a determination of who controls the methods and means by which work is performed. Id; see also Goodwin at 322 ("Control of the method and means by which work is to be performed, therefore, is a critical factor in determining whether a party is an independent contractor or an employee for the purposes of tort liability"). The Third Department has twice analyzed whether hairdressers renting space in a salon are correctly categorized as employees or independent contractors. In Conway v. Rossi, a hairdresser was found to be an independent contraetor and not an employee of the· salon where ( 1) the hairdresser paid a monthly fee to the salon owner, (2) the salon O\;Vner did not receive any portion of the fees paid by the hairdresser's clients, (3) the hairdresser purchased her oWn supplies, (4) the hairdresser maintained her ~wn . . appointment book and set her own hours, (5) the hairdresser maintained her own health benefits and (6) the salon owner did not supervise or the control the hairdresser's work. Conway v. Rossi, 192 A.D.2d 855(3d Dep't 1993). In contrast, in In re Atelek the Third Department determined that the salon exercised sufficient control over the hairdressers' work such that they were deemed employees, There are three categories of exceptions to the rule which impose liability on a principal for acts of an independent contractor: (1) the principal is negligent in selecting, instructing or supervising the independ ent contractor; (2) the independent contractor is retained to do workthat is inherently dangerous; and (3) the principal bears a specific nondelegable duty. See Nelson v. E&M 2710 Clarendon LLC, 129 AD.3d 568 (I st Dep't 2015). The parties have not provided any evidence or arguments suggesting that one of the exceptions is applicable to the instant case. 3 0 Page 12of14 13 of 15 [*FILED: NEW YORK COUNTY CLERK 06/20/2017 10:24 AM 13] NYSCEF DOC. NO. 136 INDEX NO. 156300/2013 RECEIVED NYSCEF: 06/20/2017 notwithstanding the independent contractor agreements the hairdressers had signed with the salon. The court noted that the hairdressers provided their own tools but the salon provided a sink, chair, hair dryers, towels and additional products and supplies. Additionally, the hairdressers paid the salon 60% of their daily sales, and such sales were initially deposited into the salon's cash register before the hairdressers were provided their percentage at the end of each week. Further, the hairdressers were not required to have their own clients; rather, walk-in clients were assigned to available hairdressers, and the salon sometimes ran promotions to bring in new clients. The record in the instant case contains significant questions of fact regarding whether the individuals who worked out of Laser Hair Removal II are properly categorized as employees or independent contractors, and thus, whether the second prong of the res ipsa loquitur test is met. For instance, Ms. Fasano testified that she did not tell Norma Bermuda, one of the alleged independent contractors retained by Laser Hair Removal II, what hours she was to work or be available at the salon. However, Ms. Fasano ·would sometimes call Ms. Bermuda in to the salon ifthere was a customer in need of services. Ms. Fasano also testified that she provided equipment to Ms. Bermuda, and that she and Ms. Bermuda split Ms. Bermuda's profits evenly, regardless of whether they were Ms. Bermuda's private customers or Laser Hair R~moval II's customers. Ms. Mcintosh testified that some individuals working at Laser Hair Removal II received salaries, and that one individual by the name of "Rosario" was self-employed and paid a salary tO Ms. Fasano. Ms. Mcintosh also testified that she believed two individuals were employed by Ms. Fasano-saying "They would tell me. They worked off a salary"-and that all others paid rent. Page 13of14 14 of 15 [*FILED: NEW YORK COUNTY CLERK 06/20/2017 10:24 AM 14] NYSCEF DOC. NO. 136 INDEX NO. 156300/2013 RECEIVED NYSCEF: 06/20/2017 CONCLUSION AND ORDER For the reasons stated above, material'questions of fact are yet to be resolved and Aysha's motion for summary judgment is denied. Utica First's request to extend summary judgment on its subrogation claim is denied. Accordingly, it is hereby ORDERED that 109 W. 38 ST LLC's motion for summary judgment is granted to the extent that the third-party complaint against it is dismissed and its counterclaim for contractual indemnity is granted only; and it ,is further ORDERED that plaintiff AyshaCollection,Inc.'s motion for summary judgment is denied. The clerk is directed to enter judgment accordingly. This constitutes the decision and order of the court. DATED: . June \'-<.. , 2017 ENTER: \L Qbl 0' )J.ili },.i,i~ J.S.C. i . I Page 14of14 15 of 15

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