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FILED: QUEENS COUNTY CLERK 02/09/2023 05:04 PM INDEX NO. 707287/2020
NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 02/09/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
------------------------------------------------------------------------ X Index No. 707287/2020
JEFFREY EDWARD BELLAMY,
Plaintiff,
-against-
IMDN HOLDINGS LLC, STAR LAUNDRY, LLC,
SHINING STAR LAUNDRY, LLC,
INTERCONTINENTAL HOTELS GROUP RESOURCES,
LLC, STAR LAUNDRY NYC CORP., HOLIDAY INNS,
INC. and JOHN DOE,
Defendants.
------------------------------------------------------------------------ X
MEMORANDUM OF LAW IN
SUPPORT OF SUMMARY JUDGMENT MOTION
Dated: New York, New York
February 9, 2023
Respectfully submitted,
LEWIS BRISBOIS BISGAARD &
SMITH, LLP
Attorneys for Defendant
IMDN HOLDINGS LLC
77 Water Street, Suite 2100
New York, New York 10005
(212) 232-1300
Our File No.: 19996.1576
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Preliminary Statement
This Memorandum of Law is respectfully submitted in support of IMDN’s motion for
summary judgment seeking dismissal of Plaintiff’s complaint on the ground that Plaintiff cannot
establish that IMDN breached a legal duty owed, because the laundry employee who allegedly
struck him with a laundry cart was not employed by IMDN, and IMDN had no control over the
means and method of the work being performed. Accordingly, as IMDN cannot be held
vicariously liable for the alleged negligence of the laundry employee, the instant motion must be
granted.
ARGUMENT
POINT I
IMDN IS ENTITLED TO DISMISSAL UNDER CPLR 3212
BECAUSE IT CANNOT BE HELD VICARIOUSLY LIABLE
FOR THE ACCIDENT AS ALLEGED BY PLAINTIFF;
“RICKY’S” EMPLOYER WAS AN INDEPENDENT
CONTRACTOR, AND IMDN DID NOT CONTROL THE
“METHOD AND MEANS” BY WHICH LAUNDRY WAS
DELIVERED TO THE HOTEL.
34. There can be no liability absent a duty of care owed in the first instance. Whether
a duty of care is owed by one person to another is a question of law (Purdy v Public Adm'r of
County of Westchester, 72 N.Y.2d 1 [1988]; Engelhart v County of Orange, 16 A.D.3d 369 [2d
Dept. 2005]).
35. In general, an entity has no duty to control a third party’s conduct so as to prevent
injury to another unless special circumstances exist in which the entity has sufficient authority
and control over the conduct of that third party (Engelhart v County of Orange, supra). Only
then can a duty be imposed (Id.).
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36. “One who hires an independent contractor is not liable for the independent
contractor’s negligent acts because the employer has no right to control the manner in which the
work is to be done” (Stagno v. 143-50 Hoover Owners Corp., 48 A.D.3d 548, 549 [2d Dept.
2008]). An entity that hires an independent contractor, as distinguished from an employee or
servant, is not vicariously liable for the negligent acts of the independent contractor (Kleeman v.
Rheingold, 81 N.Y.2d 270 [1993]; Sanabria v. Aguero-Borges, 117 A.D.3d 1024 [2d Dept.
2014]; Lombardi v. Overhead Doors, Inc., 928 A.D.3d 921 [2d Dept. 2012]).
37. Control of the “method and means” by which the work is to be done is the critical
factor in determining whether the entity is an independent contractor, or an employee, for the
purposes of tort liability (Lazo v. Mak’s Trading Co., 199 A.D.2d 165, 166 [1st Dept. 1993];
aff’d 84 N. Y.2d 896 [1994]; Crage v. Kissing Bridge Ski Area, 186 A.D.2d 987, 988 [4th Dept.
1992], lv denied 81 N.Y.2d 702).
38. When the evidence in the record on the issue of control is undisputed, the matter
may properly be determined by the court as a matter of law (Id.). “A determination that an
employer-employee' relationship exists must rest upon evidence that petitioner exercises control
over the results produced . . . or the means used to achieve the results” (In re 12 Cornelia St., 56
N.Y.2d 895, 897 [1982], citing Matter of Sullivan Co. [Miller], 289 N.Y. 110 [1942]).
39. In the case at bar, the record evidence overwhelmingly establishes not only that
the Plaintiff’s injuries were not caused by an employee of IMDN or the Hotel, but also that the
person who was pushing the laundry cart was employed by an independent contractor over
whose work IMDN had no control. Thus, the action must be dismissed as against IMDN.
40. Specifically, Plaintiff testified, unequivocally, that he was injured by an employee
of the “laundry company” who hit him in the back with a large industrial laundry cart (Exhibit F
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at 44). Plaintiff also stated that adjacent to where he was hit, he observed a white box truck
parked with the name “Shining Star Laundry” written on its side (Id. at 60, 64).
41. Glenda Gomez, the Hotel’s General Manager, established that the Hotel had
retained an independent company called Shining Star to provide laundry services for the hotel.
Pursuant to its contract with Shining Star, in June of 2017, Shining Star was picking up and
delivering laundry to the Hotel seven days a week, including the day of the incident (Exhibit H at
13-14). Gomez testified that the Hotel did not own any laundry bins, and that all the bins used to
transport laundry back and forth were owned by Shining Star (Id. at 49).
42. IMDN has annexed hereto as Exhibit J copies of the invoices issued to Shining
Star for these laundry services. These invoices demonstrate that on the day in question, Shining
Star was, in fact, at the Hotel delivering and picking up laundry. Tellingly, Shining Star
admitted in its Answer that it owned the subject rolling cart.1
43. Shining Star’s own employee, Barbara Olivari, corroborates Gomez’s testimony,
and establishes, conclusively, that Shining Star was hired by IMDN as an independent
contractor. Shining Star’s Response to IMDN’s Notice to Admit verifies this fact, as Shining
Star admits that on the day of the incident, it provided laundry services for the Hotel pursuant to
a contract, and further, that the invoice referenced above was submitted to the Hotel for the
services rendered on June 15, 2017 (see, Exhibits J & L).
44. Olivari also established that Shining Star then, in turn, hired its own independent
contractor, Star Laundry, which, according to Ms. Olivari, provided the actual laundry service,
including the pick-up and delivery of the laundry to the hotel (Exhibit H at 15-17). Olivari noted
1
Under New York law, the factual allegations of a verified pleading are deemed judicial
admissions binding upon the party (see e.g. P. Zaccaro Co., Inc. v. DHA Capital, LLC, 157
A.D.3d 602 [1st Dept 2018]; Bogoni v. Friedlander, 197 A.D.2d 281, 291-92 [1st Dept 1994]).
Thus, the fact that Shining Star admitted ownership of the cart is conclusive evidence of this fact.
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that if the Hotel had a problem or issue with the laundry, it would call Shining Star, and Shining
Star would then contact Star Laundry (Id. at 20-21). She also stated that the Hotel would
likewise pay Shining Star for the services, and Shining Star would, in turn, pay Star Laundry (Id.
at 22).
45. Inna Gromov, Star Laundry’s bookkeeper, confirmed that Shining Star and Star
Laundry had a contractual relationship for laundry service, which contract was in effect in June
of 2017 (Exhibit K at 9, 10, 11-12). Both Shining Star and Star Laundry admitted that they
owned their own equipment, including laundry bins and box car trucks (Id. at 23; Exhibit C at ¶
64).
46. While Shining Star claims that “Ricky” was an employee of Star Laundry, and
Star Laundry claims to have no knowledge of Ricky’s employment, this issue has nothing to do
with their status as independent contractors, or the Hotel’s liability for the plaintiff’s incident.
For purposes of this motion, the only issue that requires resolution is whether Shining Star was
an independent contractor which, as the record evidence demonstrates, it was.
47. With respect to the question of whether one is an independent contractor, where
proof on the issue of control presents no conflict in evidence, the matter may properly be
determined by the court as a matter of law (Shapiro v. Robinson, 102 A.D.2d 822 [2d Dept] aff'd
63 N.Y.2d 896 [1984]; Berger v. Dykstra, 203 A.D.2d 754 [3rd Dept 1993]; Dente v. Staten
Island University Hosp., 252 A.D.2d 534 [2d Dept 1998]; Mercado v. Slope Associates, 246
A.D.2d 581 [2d Dep't 1998]).
48. For example, in Spitzer v. Kings Plaza Shopping Center of Flatbush Ave., Inc.
275 A.D.2d 450 [2d Dept 2000], the Appellate Division affirmed the dismissal of a plaintiffs
complaint against the defendant landowners, holding that the owners were not liable for their
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independent contractor's allegedly negligent performance in mopping the floor on which the
plaintiff slipped and fell. The Court noted, "Since the cleaning activity in question was not
intrinsically dangerous, and since there was no proof that the [defendant landowners] controlled
the contractor's work, the [defendant landowners], as owners of the premises, cannot be held
liable for the negligent performance of such services by an independent contractor (citing Terzo
v. Wiederkehr, 270 A.D.2d 479 [2d Dept. 2000]; Fischer v. Battery Bldg. Maintenance Co., 135
A.D.2d 378 [1st Dept. 1987]).
49. The facts of the instant case are very similar to those presented in Spitzer. Just as
in Spitzer, Plaintiff seeks to hold the premises owner liable for negligent conduct performed by
an independent contractor. As in Spitzer, there is no evidence indicating that IMDN exercised
any control over the manner and method by which Shining Star and or Star Laundry delivered
the clean linens.
50. In Fischer v. Battery Bldg. Maintenance Co., supra, 135 A.D.2d at 378, the First
Department held, "A person who engages an independent contractor is generally not held liable
for the latter's negligent performance … [except where] the employer interferes with and
assumes control over the work, or where the work is inherently dangerous."
51. The control of the method and means by which the work is done is the critical
factor in the analysis for determining whether one is an independent contractor or employee for
the purposes of liability. The record herein fails to disclose any control of the work performed
by Shining Star or Star Laundry by IMDN or the hotel. Indeed, “[i]ncidental control over the
results produced—without further evidence of control over the means employed to achieve the
results—will not constitute substantial evidence of an employer-employee relationship” (Hertz
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v. Commissioner of Labor, 2 N.Y.3d 733, 735 [2004], citing Matter of Ted Is Back, 64 N.Y.2d
725, 726 [1984]).
52. Hiring a company to provide laundry services, which then takes it upon itself to
outsource its work to another company, is not and cannot be considered an employer-employee
relationship because the laundry servicer is an independent contractor hired for a limited purpose
(see e.g. Bennett v. Commercial Flooring Specialists, Ltd., 77 A.D.3d 696, 696 [2d Dept. 2010] [
“[t]he plaintiff commenced this action alleging that the defendant, or its purported agent,
nonparty A.C. Floors, Inc. … during the course of installing carpeting at the plaintiff's place of
employment, negligently stacked plastic floor mats near a copy machine, over which the plaintiff
tripped and fell. The defendant established its prima facie entitlement to judgment as a matter of
law by demonstrating that it did not stack the plastic floor mats and that, if AC Floors stacked the
mats, that AC Floors was not its employee, but rather, was an independent contractor In
opposition, the plaintiff failed to raise a triable issue of fact … Accordingly, the Supreme Court
should have granted the defendant's motion for summary judgment dismissing the complaint”];
see also Goodwin v. Comcast Corporation, 42 A.D.3d 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).
53. Applying the foregoing well-settled legal principles to the facts at hand, the
evidence plainly shows that Plaintiff’s allegations against IMDN are entirely without merit.
IMDN and/or the Hotel cannot plausibly be described as “employers” of Shining Star or Star
Laundry for the purposes of vicarious liability. In fact, IMDN wasn’t even aware that Shining
Star had hired another company to undertake the work it had hired Shining Star to perform
(Exhibit G at 23). Rather, these two defendants were clearly “independent contractors” as a
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matter of law under the above cited authorities. Under well-established case law in this state,
vicarious liability will not attach for any alleged negligence where, as here, the person who
allegedly struck Plaintiff with the laundry cart was not an “employee” of IMDN as a matter of
law (see e.g., Marino v. Vega, 12 A.D.3d 329 [1st Dept. 2004]). Duhe v. Midence, 48 A.D.3d 244
[1st Dept. 2008]; Rokicki v. 24 Hour Courier Service, Inc., 294 A.D.2d 555 [2d Dept. 2002]).
54. As IMDN cannot be liable for the negligent conduct of its independent contractor,
the instant motion should be granted in all respects.
POINT II
IMDN IS ENTITLED TO SUMMARY JUDGMENT AS A
MATTER OF LAW.
55. A motion for summary judgment to dismiss a cause of action sounding in
negligence will be granted, where the facts confirm the absence of any negligence by the
defendants (see, e.g., LeGrand v. Primus Automotive Financial Services, Inc., 272 A.D.2d 450
2d Dept. 2000]; Lazar v. Fea Leasing, Inc., 264 A.D.2d 818 [2d Dept. 1999]; Young v. City of
New York, 113 A.D.2d 833 [2d Dept. 1985]).
56. CPLR § 3212 provides that a motion for summary judgment shall be granted if
“upon all the papers and proof submitted, the cause of action or defense shall be established
sufficient to warrant the court, as a matter of law, in directing judgment in favor of any party”
(Meth v. Kolker, 39 A.D.2d 651 [1st Dept. 1972], aff’d, 33 N.Y.2d 780 [1973]; Koreska v.
United Cargo Corp., 23 A.D.2d 37 [1st Dept. 1965] [in the absence of a triable issue of fact,
summary judgment must be granted]).
57. The Court must determine if an issue exists which requires resolution by a finder
of fact. If no issue of fact exists, summary judgment should be granted to the movant [Miccio v.
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Skidmore College, 180 A.D.2d 983 [3rd Dept. 1992]). In the instant matter, since no issues of
fact exist, summary judgment is warranted.
58. Summary judgment is warranted where no triable issues of fact exist for
resolution by a judge or jury (Alvord and Swift v. Steward M. Muller Const. Co., Inc., 46 N.Y.2d
276, 278 [1978]). The Court of Appeals established the standard for summary judgment motions
in Zuckerman v. City of New York, 49 N.Y.2d 557 [1980]):
To 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 judgment’ in his favor (CPLR
3212, sbd. (b)), and must do so by tender of evidentiary proof in
admissible form.
Id. At 596.
59. Once a prima facie showing has been made by the movant, “the burden shifts to
the party opposing the motion for summary judgment to produce evidentiary proof in admissible
form sufficient to establish material issues of fact which require a trial of the action” ( Alvarez v.
Prospect Hospital, 68 N.Y.2d 320, 323 [1986]). A summary judgment motion should be granted
where there is no genuine issue to be resolved at trial (see McGraw v. Ranieri, 202 A.D.2d 725
[3rd Dept. 1994]; Sun Yau Ko v. Lincoln Savings Bank, 99 A.D.2d 943 [1st Dept. 1984]; aff’d 62
N.Y.2d 938 [1st Dept. 1984]).
60. It is well settled that “…a shadowy semblance of an issue or bald conclusory
assertions, even if believable, are not enough to defeat a motion for summary judgment”
(Paltrow v. Town of Lewisboro, 199 A.D.2d 372 [2d Dept. 1993]; see also Seaboard Surety
Company v. Nigro Bros., Inc., 222 A.D.2d 574 [2d Dept. 1995]; Spodek v. Park Property
Development Associates, 263 A.D.2d 478 [2d Dept. 1999]).
61. Clearly, there must be something evidentiary in nature to sustain a claim. “Mere
conclusions based upon surmise, conjecture, speculation or assertions are without probative
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value” (Sosa v. Golub Corp., 273 A.D.2d 762 [3rd Dept. 2000] quoting Maiorano v. Price
Chopper Operating Co., 221 A.D.2d 698, 699 [3d Dept. 1995]; see also Gateway State Bank v.
Shangri-La Private Club for Women, Inc., 113 A.D.2d 791 [2d Dept. 1985]).
62. Summary judgment exists to:
… expedite all civil cases by eliminating from the Trial Calendar
claims which can properly be resolved as a matter of law…When
there is no genuine issue to be resolved at trial, the case should be
summarily decided, and an unfounded reluctance to employ the
remedy will only serve to swell the Trial Calendar…”
Andre v. Pomeroy, 35 N.Y.2d 361, 364 [1974])
63. At bar, IMDN has established that pursuant to a contract, the defendant Shining
Star performed laundry services for the Hotel, one of IMDN’s properties. Apparently, Shining
Star outsourced this work to Star Laundry. Whether Ricky was employed by Shining Star or
Star Laudnry is of no importance to the instant motion, as he was not an employee or agent of
IMDN. The evidence establishes that IMDN did not supervise, direct or control any of the work
performed by Shining Star or Star Laundry. The equipment used by the co-defendants, including
the laundry bin that hit Plaintiff, and which Shining Star admits ownership of in its Verified
Answer, were owned exclusively by the co-defendants and in their exclusive control. None of
the laundry work was even performed on IMDN’s property As IMDN has clearly established
that Shining Star and its own subcontractor Star Laundry were independent contractors, vicarious
liability for Plaintiff’s injuries cannot be imputed to IMDN. Accordingly, under the
circumstances, summary judgment dismissing the complaint and all cross claims as against
IMDN is warranted.
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CONCLUSION
64. Since IMDN established prima facie entitlement to summary judgment and
Plaintiff, in opposition, cannot raise a triable issue of fact, it is respectfully requested that this
Court issue an Order, pursuant to C.P.L.R. § 3212, granting the instant motion dismissing
Plaintiff’s complaint against IMDN in its entirety, as well as all cross claims asserted by the co-
defendants against it.
Dated: New York, New York
February 9, 2023
Sydney S. Sanchez
SYDNEY SANCHEZ, ESQ.
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VERIFICATION PURSUANT TO 202.8-B
Pursuant to Rule 202.8-b of the Rules of this Court, I certify that the accompanying
Memorandum of Law, which was prepared using Times New Roman 12-point typeface, contains
2880 words. This certificate was prepared in reliance on the word-count function of the word-
processing system (Microsoft Word) used to prepare this document.
I declare under penalty of perjury that the foregoing is true and correct.
LEWIS BRISBOIS BISGAARD & SMITH LLP
By: Sydney S. Sanchez
SYDNEY S. SANCHEZ
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Preview
FILED: QUEENS COUNTY CLERK 02/09/2023 05:04 PM INDEX NO. 707287/2020 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 02/09/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS ------------------------------------------------------------------------ X Index No. 707287/2020 JEFFREY EDWARD BELLAMY, Plaintiff, -against- IMDN HOLDINGS LLC, STAR LAUNDRY, LLC, SHINING STAR LAUNDRY, LLC, INTERCONTINENTAL HOTELS GROUP RESOURCES, LLC, STAR LAUNDRY NYC CORP., HOLIDAY INNS, INC. and JOHN DOE, Defendants. ------------------------------------------------------------------------ X MEMORANDUM OF LAW IN SUPPORT OF SUMMARY JUDGMENT MOTION Dated: New York, New York February 9, 2023 Respectfully submitted, LEWIS BRISBOIS BISGAARD & SMITH, LLP Attorneys for Defendant IMDN HOLDINGS LLC 77 Water Street, Suite 2100 New York, New York 10005 (212) 232-1300 Our File No.: 19996.1576 16 1 of 12 FILED: QUEENS COUNTY CLERK 02/09/2023 05:04 PM INDEX NO. 707287/2020 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 02/09/2023 Preliminary Statement This Memorandum of Law is respectfully submitted in support of IMDN’s motion for summary judgment seeking dismissal of Plaintiff’s complaint on the ground that Plaintiff cannot establish that IMDN breached a legal duty owed, because the laundry employee who allegedly struck him with a laundry cart was not employed by IMDN, and IMDN had no control over the means and method of the work being performed. Accordingly, as IMDN cannot be held vicariously liable for the alleged negligence of the laundry employee, the instant motion must be granted. ARGUMENT POINT I IMDN IS ENTITLED TO DISMISSAL UNDER CPLR 3212 BECAUSE IT CANNOT BE HELD VICARIOUSLY LIABLE FOR THE ACCIDENT AS ALLEGED BY PLAINTIFF; “RICKY’S” EMPLOYER WAS AN INDEPENDENT CONTRACTOR, AND IMDN DID NOT CONTROL THE “METHOD AND MEANS” BY WHICH LAUNDRY WAS DELIVERED TO THE HOTEL. 34. There can be no liability absent a duty of care owed in the first instance. Whether a duty of care is owed by one person to another is a question of law (Purdy v Public Adm'r of County of Westchester, 72 N.Y.2d 1 [1988]; Engelhart v County of Orange, 16 A.D.3d 369 [2d Dept. 2005]). 35. In general, an entity has no duty to control a third party’s conduct so as to prevent injury to another unless special circumstances exist in which the entity has sufficient authority and control over the conduct of that third party (Engelhart v County of Orange, supra). Only then can a duty be imposed (Id.). 17 2 of 12 FILED: QUEENS COUNTY CLERK 02/09/2023 05:04 PM INDEX NO. 707287/2020 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 02/09/2023 36. “One who hires an independent contractor is not liable for the independent contractor’s negligent acts because the employer has no right to control the manner in which the work is to be done” (Stagno v. 143-50 Hoover Owners Corp., 48 A.D.3d 548, 549 [2d Dept. 2008]). An entity that hires an independent contractor, as distinguished from an employee or servant, is not vicariously liable for the negligent acts of the independent contractor (Kleeman v. Rheingold, 81 N.Y.2d 270 [1993]; Sanabria v. Aguero-Borges, 117 A.D.3d 1024 [2d Dept. 2014]; Lombardi v. Overhead Doors, Inc., 928 A.D.3d 921 [2d Dept. 2012]). 37. Control of the “method and means” by which the work is to be done is the critical factor in determining whether the entity is an independent contractor, or an employee, for the purposes of tort liability (Lazo v. Mak’s Trading Co., 199 A.D.2d 165, 166 [1st Dept. 1993]; aff’d 84 N. Y.2d 896 [1994]; Crage v. Kissing Bridge Ski Area, 186 A.D.2d 987, 988 [4th Dept. 1992], lv denied 81 N.Y.2d 702). 38. When the evidence in the record on the issue of control is undisputed, the matter may properly be determined by the court as a matter of law (Id.). “A determination that an employer-employee' relationship exists must rest upon evidence that petitioner exercises control over the results produced . . . or the means used to achieve the results” (In re 12 Cornelia St., 56 N.Y.2d 895, 897 [1982], citing Matter of Sullivan Co. [Miller], 289 N.Y. 110 [1942]). 39. In the case at bar, the record evidence overwhelmingly establishes not only that the Plaintiff’s injuries were not caused by an employee of IMDN or the Hotel, but also that the person who was pushing the laundry cart was employed by an independent contractor over whose work IMDN had no control. Thus, the action must be dismissed as against IMDN. 40. Specifically, Plaintiff testified, unequivocally, that he was injured by an employee of the “laundry company” who hit him in the back with a large industrial laundry cart (Exhibit F 18 3 of 12 FILED: QUEENS COUNTY CLERK 02/09/2023 05:04 PM INDEX NO. 707287/2020 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 02/09/2023 at 44). Plaintiff also stated that adjacent to where he was hit, he observed a white box truck parked with the name “Shining Star Laundry” written on its side (Id. at 60, 64). 41. Glenda Gomez, the Hotel’s General Manager, established that the Hotel had retained an independent company called Shining Star to provide laundry services for the hotel. Pursuant to its contract with Shining Star, in June of 2017, Shining Star was picking up and delivering laundry to the Hotel seven days a week, including the day of the incident (Exhibit H at 13-14). Gomez testified that the Hotel did not own any laundry bins, and that all the bins used to transport laundry back and forth were owned by Shining Star (Id. at 49). 42. IMDN has annexed hereto as Exhibit J copies of the invoices issued to Shining Star for these laundry services. These invoices demonstrate that on the day in question, Shining Star was, in fact, at the Hotel delivering and picking up laundry. Tellingly, Shining Star admitted in its Answer that it owned the subject rolling cart.1 43. Shining Star’s own employee, Barbara Olivari, corroborates Gomez’s testimony, and establishes, conclusively, that Shining Star was hired by IMDN as an independent contractor. Shining Star’s Response to IMDN’s Notice to Admit verifies this fact, as Shining Star admits that on the day of the incident, it provided laundry services for the Hotel pursuant to a contract, and further, that the invoice referenced above was submitted to the Hotel for the services rendered on June 15, 2017 (see, Exhibits J & L). 44. Olivari also established that Shining Star then, in turn, hired its own independent contractor, Star Laundry, which, according to Ms. Olivari, provided the actual laundry service, including the pick-up and delivery of the laundry to the hotel (Exhibit H at 15-17). Olivari noted 1 Under New York law, the factual allegations of a verified pleading are deemed judicial admissions binding upon the party (see e.g. P. Zaccaro Co., Inc. v. DHA Capital, LLC, 157 A.D.3d 602 [1st Dept 2018]; Bogoni v. Friedlander, 197 A.D.2d 281, 291-92 [1st Dept 1994]). Thus, the fact that Shining Star admitted ownership of the cart is conclusive evidence of this fact. 19 4 of 12 FILED: QUEENS COUNTY CLERK 02/09/2023 05:04 PM INDEX NO. 707287/2020 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 02/09/2023 that if the Hotel had a problem or issue with the laundry, it would call Shining Star, and Shining Star would then contact Star Laundry (Id. at 20-21). She also stated that the Hotel would likewise pay Shining Star for the services, and Shining Star would, in turn, pay Star Laundry (Id. at 22). 45. Inna Gromov, Star Laundry’s bookkeeper, confirmed that Shining Star and Star Laundry had a contractual relationship for laundry service, which contract was in effect in June of 2017 (Exhibit K at 9, 10, 11-12). Both Shining Star and Star Laundry admitted that they owned their own equipment, including laundry bins and box car trucks (Id. at 23; Exhibit C at ¶ 64). 46. While Shining Star claims that “Ricky” was an employee of Star Laundry, and Star Laundry claims to have no knowledge of Ricky’s employment, this issue has nothing to do with their status as independent contractors, or the Hotel’s liability for the plaintiff’s incident. For purposes of this motion, the only issue that requires resolution is whether Shining Star was an independent contractor which, as the record evidence demonstrates, it was. 47. With respect to the question of whether one is an independent contractor, where proof on the issue of control presents no conflict in evidence, the matter may properly be determined by the court as a matter of law (Shapiro v. Robinson, 102 A.D.2d 822 [2d Dept] aff'd 63 N.Y.2d 896 [1984]; Berger v. Dykstra, 203 A.D.2d 754 [3rd Dept 1993]; Dente v. Staten Island University Hosp., 252 A.D.2d 534 [2d Dept 1998]; Mercado v. Slope Associates, 246 A.D.2d 581 [2d Dep't 1998]). 48. For example, in Spitzer v. Kings Plaza Shopping Center of Flatbush Ave., Inc. 275 A.D.2d 450 [2d Dept 2000], the Appellate Division affirmed the dismissal of a plaintiffs complaint against the defendant landowners, holding that the owners were not liable for their 20 5 of 12 FILED: QUEENS COUNTY CLERK 02/09/2023 05:04 PM INDEX NO. 707287/2020 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 02/09/2023 independent contractor's allegedly negligent performance in mopping the floor on which the plaintiff slipped and fell. The Court noted, "Since the cleaning activity in question was not intrinsically dangerous, and since there was no proof that the [defendant landowners] controlled the contractor's work, the [defendant landowners], as owners of the premises, cannot be held liable for the negligent performance of such services by an independent contractor (citing Terzo v. Wiederkehr, 270 A.D.2d 479 [2d Dept. 2000]; Fischer v. Battery Bldg. Maintenance Co., 135 A.D.2d 378 [1st Dept. 1987]). 49. The facts of the instant case are very similar to those presented in Spitzer. Just as in Spitzer, Plaintiff seeks to hold the premises owner liable for negligent conduct performed by an independent contractor. As in Spitzer, there is no evidence indicating that IMDN exercised any control over the manner and method by which Shining Star and or Star Laundry delivered the clean linens. 50. In Fischer v. Battery Bldg. Maintenance Co., supra, 135 A.D.2d at 378, the First Department held, "A person who engages an independent contractor is generally not held liable for the latter's negligent performance … [except where] the employer interferes with and assumes control over the work, or where the work is inherently dangerous." 51. The control of the method and means by which the work is done is the critical factor in the analysis for determining whether one is an independent contractor or employee for the purposes of liability. The record herein fails to disclose any control of the work performed by Shining Star or Star Laundry by IMDN or the hotel. Indeed, “[i]ncidental control over the results produced—without further evidence of control over the means employed to achieve the results—will not constitute substantial evidence of an employer-employee relationship” (Hertz 21 6 of 12 FILED: QUEENS COUNTY CLERK 02/09/2023 05:04 PM INDEX NO. 707287/2020 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 02/09/2023 v. Commissioner of Labor, 2 N.Y.3d 733, 735 [2004], citing Matter of Ted Is Back, 64 N.Y.2d 725, 726 [1984]). 52. Hiring a company to provide laundry services, which then takes it upon itself to outsource its work to another company, is not and cannot be considered an employer-employee relationship because the laundry servicer is an independent contractor hired for a limited purpose (see e.g. Bennett v. Commercial Flooring Specialists, Ltd., 77 A.D.3d 696, 696 [2d Dept. 2010] [ “[t]he plaintiff commenced this action alleging that the defendant, or its purported agent, nonparty A.C. Floors, Inc. … during the course of installing carpeting at the plaintiff's place of employment, negligently stacked plastic floor mats near a copy machine, over which the plaintiff tripped and fell. The defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that it did not stack the plastic floor mats and that, if AC Floors stacked the mats, that AC Floors was not its employee, but rather, was an independent contractor In opposition, the plaintiff failed to raise a triable issue of fact … Accordingly, the Supreme Court should have granted the defendant's motion for summary judgment dismissing the complaint”]; see also Goodwin v. Comcast Corporation, 42 A.D.3d 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). 53. Applying the foregoing well-settled legal principles to the facts at hand, the evidence plainly shows that Plaintiff’s allegations against IMDN are entirely without merit. IMDN and/or the Hotel cannot plausibly be described as “employers” of Shining Star or Star Laundry for the purposes of vicarious liability. In fact, IMDN wasn’t even aware that Shining Star had hired another company to undertake the work it had hired Shining Star to perform (Exhibit G at 23). Rather, these two defendants were clearly “independent contractors” as a 22 7 of 12 FILED: QUEENS COUNTY CLERK 02/09/2023 05:04 PM INDEX NO. 707287/2020 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 02/09/2023 matter of law under the above cited authorities. Under well-established case law in this state, vicarious liability will not attach for any alleged negligence where, as here, the person who allegedly struck Plaintiff with the laundry cart was not an “employee” of IMDN as a matter of law (see e.g., Marino v. Vega, 12 A.D.3d 329 [1st Dept. 2004]). Duhe v. Midence, 48 A.D.3d 244 [1st Dept. 2008]; Rokicki v. 24 Hour Courier Service, Inc., 294 A.D.2d 555 [2d Dept. 2002]). 54. As IMDN cannot be liable for the negligent conduct of its independent contractor, the instant motion should be granted in all respects. POINT II IMDN IS ENTITLED TO SUMMARY JUDGMENT AS A MATTER OF LAW. 55. A motion for summary judgment to dismiss a cause of action sounding in negligence will be granted, where the facts confirm the absence of any negligence by the defendants (see, e.g., LeGrand v. Primus Automotive Financial Services, Inc., 272 A.D.2d 450 2d Dept. 2000]; Lazar v. Fea Leasing, Inc., 264 A.D.2d 818 [2d Dept. 1999]; Young v. City of New York, 113 A.D.2d 833 [2d Dept. 1985]). 56. CPLR § 3212 provides that a motion for summary judgment shall be granted if “upon all the papers and proof submitted, the cause of action or defense shall be established sufficient to warrant the court, as a matter of law, in directing judgment in favor of any party” (Meth v. Kolker, 39 A.D.2d 651 [1st Dept. 1972], aff’d, 33 N.Y.2d 780 [1973]; Koreska v. United Cargo Corp., 23 A.D.2d 37 [1st Dept. 1965] [in the absence of a triable issue of fact, summary judgment must be granted]). 57. The Court must determine if an issue exists which requires resolution by a finder of fact. If no issue of fact exists, summary judgment should be granted to the movant [Miccio v. 23 8 of 12 FILED: QUEENS COUNTY CLERK 02/09/2023 05:04 PM INDEX NO. 707287/2020 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 02/09/2023 Skidmore College, 180 A.D.2d 983 [3rd Dept. 1992]). In the instant matter, since no issues of fact exist, summary judgment is warranted. 58. Summary judgment is warranted where no triable issues of fact exist for resolution by a judge or jury (Alvord and Swift v. Steward M. Muller Const. Co., Inc., 46 N.Y.2d 276, 278 [1978]). The Court of Appeals established the standard for summary judgment motions in Zuckerman v. City of New York, 49 N.Y.2d 557 [1980]): To 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 judgment’ in his favor (CPLR 3212, sbd. (b)), and must do so by tender of evidentiary proof in admissible form. Id. At 596. 59. Once a prima facie showing has been made by the movant, “the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish material issues of fact which require a trial of the action” ( Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 323 [1986]). A summary judgment motion should be granted where there is no genuine issue to be resolved at trial (see McGraw v. Ranieri, 202 A.D.2d 725 [3rd Dept. 1994]; Sun Yau Ko v. Lincoln Savings Bank, 99 A.D.2d 943 [1st Dept. 1984]; aff’d 62 N.Y.2d 938 [1st Dept. 1984]). 60. It is well settled that “…a shadowy semblance of an issue or bald conclusory assertions, even if believable, are not enough to defeat a motion for summary judgment” (Paltrow v. Town of Lewisboro, 199 A.D.2d 372 [2d Dept. 1993]; see also Seaboard Surety Company v. Nigro Bros., Inc., 222 A.D.2d 574 [2d Dept. 1995]; Spodek v. Park Property Development Associates, 263 A.D.2d 478 [2d Dept. 1999]). 61. Clearly, there must be something evidentiary in nature to sustain a claim. “Mere conclusions based upon surmise, conjecture, speculation or assertions are without probative 24 9 of 12 FILED: QUEENS COUNTY CLERK 02/09/2023 05:04 PM INDEX NO. 707287/2020 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 02/09/2023 value” (Sosa v. Golub Corp., 273 A.D.2d 762 [3rd Dept. 2000] quoting Maiorano v. Price Chopper Operating Co., 221 A.D.2d 698, 699 [3d Dept. 1995]; see also Gateway State Bank v. Shangri-La Private Club for Women, Inc., 113 A.D.2d 791 [2d Dept. 1985]). 62. Summary judgment exists to: … expedite all civil cases by eliminating from the Trial Calendar claims which can properly be resolved as a matter of law…When there is no genuine issue to be resolved at trial, the case should be summarily decided, and an unfounded reluctance to employ the remedy will only serve to swell the Trial Calendar…” Andre v. Pomeroy, 35 N.Y.2d 361, 364 [1974]) 63. At bar, IMDN has established that pursuant to a contract, the defendant Shining Star performed laundry services for the Hotel, one of IMDN’s properties. Apparently, Shining Star outsourced this work to Star Laundry. Whether Ricky was employed by Shining Star or Star Laudnry is of no importance to the instant motion, as he was not an employee or agent of IMDN. The evidence establishes that IMDN did not supervise, direct or control any of the work performed by Shining Star or Star Laundry. The equipment used by the co-defendants, including the laundry bin that hit Plaintiff, and which Shining Star admits ownership of in its Verified Answer, were owned exclusively by the co-defendants and in their exclusive control. None of the laundry work was even performed on IMDN’s property As IMDN has clearly established that Shining Star and its own subcontractor Star Laundry were independent contractors, vicarious liability for Plaintiff’s injuries cannot be imputed to IMDN. Accordingly, under the circumstances, summary judgment dismissing the complaint and all cross claims as against IMDN is warranted. 25 10 of 12 FILED: QUEENS COUNTY CLERK 02/09/2023 05:04 PM INDEX NO. 707287/2020 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 02/09/2023 CONCLUSION 64. Since IMDN established prima facie entitlement to summary judgment and Plaintiff, in opposition, cannot raise a triable issue of fact, it is respectfully requested that this Court issue an Order, pursuant to C.P.L.R. § 3212, granting the instant motion dismissing Plaintiff’s complaint against IMDN in its entirety, as well as all cross claims asserted by the co- defendants against it. Dated: New York, New York February 9, 2023 Sydney S. Sanchez SYDNEY SANCHEZ, ESQ. 26 11 of 12 FILED: QUEENS COUNTY CLERK 02/09/2023 05:04 PM INDEX NO. 707287/2020 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 02/09/2023 VERIFICATION PURSUANT TO 202.8-B Pursuant to Rule 202.8-b of the Rules of this Court, I certify that the accompanying Memorandum of Law, which was prepared using Times New Roman 12-point typeface, contains 2880 words. This certificate was prepared in reliance on the word-count function of the word- processing system (Microsoft Word) used to prepare this document. I declare under penalty of perjury that the foregoing is true and correct. LEWIS BRISBOIS BISGAARD & SMITH LLP By: Sydney S. Sanchez SYDNEY S. SANCHEZ 27 12 of 12