Motion-Secondary: Marlene Flores v. Us Maintenance, Inc., One-A Cleaning & Maintenance Corp.

On December 02, 2016 a Motion-Secondary was filed involving a dispute between Marlene Flores, and One-A Cleaning & Maintenance Corp., Us Maintenance, Inc., for Torts - Other Negligence (Premises Negligence) in the District Court of Kings County.

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FILED: KINGS COUNTY CLERK 01/07/2019 11:09 AM INDEX NO. 521387/2016
NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 01/07/2019

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
- - -------------------------- - -- - - - -- - - -- X
MARLENE FLORES, Index No.:
521387/2016

Plaintiff,
AFFIRMATION IN
-against- REPLY TO
PLAINTIFF'S

US MAINTENANCE, INC., and ONE-A CLEANING & OPPOSITION TO
MAINTENANCE CORP., USM'S MOTION
FOR SUMMARY
Defendants. JUDGMENT
---------------------------- - -- - - - -- - - -- X

AMY PIMER, ESQ., an attorney duly admitted and licensed to practice law

before the Courts of the State of New York hereby affirms the following to be true under penalty

of perjury:

1. I am associated with the firm LONDON FISCHER LLP, attorneys for

Defendant USM, INC., i/s/h/a US MAINTENANCE, INC. ("USM") in the above action, and I

am fullyfamiliar with the facts set forth herein.

2. This Affirmation is submitted in Reply to PLAINTIFF's Opposition to

USM's Motion for Summary Judgment and in further support of USM's Motion for an Order:

a. Pursuant to Rule 3212(a) of the Civil Practice Laws and

Rules ("CPLR"), granting summary judgment to USM,
severing and dismissing each claim asserted against it,
on the grounds that there exists no material issue of fact

regarding USM's non-liability and because USM is
entitled to judgment as a matter of law;

b. Directing the Clerk of the Court to enter judgment

severing and dismissing each claim, cross-claim and
cause of action asserted against USM in this action; and

c. Granting USM such other, further and different relief as
the Court may deem just and proper.

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SUMMARY OF ARGUMENT

3. PLAINTIFF's Opposition to USM's motion for summary judgment fails

to raise an issue of fact as to USM's non-liability.

4. It is undisputed that USM did not perform any work that could have

created the condition claimed because USM did not perform any work at the Accident Location.

5. PLAINTIFF argues that there is a question of fact regarding USM's

control over its subcontractor, ONE-A CLEANING & MAINTENANCE CORP. ("ONE-A")

and that USM is vicariously liable for ONE-A. However, USM cannot be held vicariously liable

for the acts of its subcontractor because itis undisputed that USM did not have control over ONE-

A. As stated below: USM was not on site;USM did not direct the employees of ONE-A on how

to clean the store; and USM did not tell ONE-A employees where in the store to start working.

Finally, USM did not review and sign off on ONE-A's work after itfinished a job, that was done

by the Toys R Us ("TRU") store manager.

6. It isblack letter law that where a contractor does not have control over an

independent contractor itcannot be held vicariously liable.

7. As no issues of fact are raised, USM is entitled to Summary Judgment.

I. USM'S MOTION FOR SUMMARY JUDGMENT MUST BE GRANTED BECAUSE IT
ESTABLISHED ITS PRIMA FACIE BURDEN

USM was not on Site. Could not have Caused the Accident. and Owed no Duty to PLAINTIFF

8. It isundisputed that USM was not present at the Accident Location on the

day of the accident and that USM never performed any janitorial services at theAccident Location.

"F"
See Exhibit of the Pimer Affirmation at pp. 17-19. As USM was not on site,itcould not have

been negligent. See Cino v. City of New York, et al.,49 A.D.3d 796, 854 N.Y.S.2d 201 (2d Dep't

2008).

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9. USM owed no duty to PLAINTIFF. USM maintained contractual

relationships with TRU and ONE-A for the Accident Location. USM did not have a contractual

relationship with PLAINTIFF. PLAINTIFF's connection to USM is limited to that of a third-party,

"K" "L"
as PLAINTIFF is not a party to either contract. See Exhibits and of the Pimer Affirmation.

10. Itis well established that a contractor can only be held liable to a third party

if:(1) the contracting party launches a force or instrument of harm; (2) the plaintiff detrimentally

relies on the continued performance of the contracting party's duties; and (3) where the contracting

party has entirely displaced the other party's duty to maintain the premises safely. See Espinal v.

Melville Snow Contractors, Inc., 98 N.Y.2d 136, 140, 773 N.E.2d 485, 488, 746 N.Y.S.2d 120, 123

(2002).

11. PLAINTIFF states outright that the first exception isinapplicable on the facts

of the instant case and that there is no issue regarding that fact that USM did not create the wet floor.

See PLAINTIFF's Affirmation in Opposition at ¶ 12. Further, PLAINTIFF makes no argument that

USM failed to establish the second or third Espinal exceptions.

12. PLAINTIFF does not dispute that Espinal is the standard that should applied

in the instant case. In an attempt to distract the court from the very straightforward facts on this

case, Plaintiff relies on the holding in Bell v.H M C. Corp., 18 A.D.2d 1038, 238 N.Y.S.2d 592 (3d

Dep't 1963), which in inapplicable and not binding on this court.

13. The Third Department's holding in Bell v. H M C. Corp., was that the

defendant owed a duty of reasonable care to keep a parking lot safe to the plaintiff because itwas

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the owner of the lot. Id USM is not the owner of the TRU where the accident happened and

therefore this non-delegable duty of an owner has no bearing on USM's motion.

14. The evidence provided by USM, even viewed in the light most favorable to

PLAINTIFF, demonstrates beyond dispute that there are no issues of material fact. There are no

competing inferences that can be drawn with respect to USM's non-liability for PLAINTIFF's

accident. Myers v. Fir. Cab Corp., 64 N.Y.2d 806, 476 N.E.2d 321, 486 N.Y.S.2d 922 (1985).

15. As USM was not on site,could not have been negligent, and did not owe a

duty to PLAINTIFF, USM is entitled to summary judgment.

II. PLAINTIFF FAILS TO RAISE AN ISSUE OF FACT AS TO USM'S
NON-LIABILITY

16. PLAINTIFF argues that a question of fact exists regarding USM's control

over ONE-A's work at the Accident Location and argues that USM can be held vicariously liable if

ONE-A created the condition. See PLAINTIFF's Opposition at ¶¶ 12, 27.

17. While Plaintiff admits that a contractor is generally not responsible for the

tortious acts ofan independent contractor, see Plaintiff's Opposition at ¶ 17; Chainani v.Bd of Educ.,

87 N.Y.2d 370, 381, 663 N.E.2d 283, 287, 639, N.Y.S.2d 971, 975 (1995) (holding that the Board

of Education for the City of New York could not be held vicariously liable for the tortious acts

committed by the independent contractor, a bus driver, who provided transportation pursuant to a

contract with the school), PLAINTIFF argues that the situation at bar presents an exception to that

rule.

18. PLAINTIFF argues ifan employer assumes control of the details ofthe work

then the general rule is not applicable. See PLAINTIFF's Opposition at ¶ 19. PLAINTIFF cites to

1 noted that
Itshould the Third Department ultimatelyfound for theDefendant, because therewas no evidence to show
thatthe means and methods used by the defendants toclearthe parking lotof snow and icemade thecondition worse.
Id at 1038,593.

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Matter of Morton, 284 N.Y. 167, 30 N.E.2d 369 (1940) for the factors in determining whether a

"independent."
1 contractor is truly As set out in Morton, the factors weighed by the court included:

who provided the supplies ñêcessary to perform the job; the fact that the employee's business card l

was also imprinted with the name of the company who hired her to sell goods; the fact that the

card"
salesperson needed to report weekly to her employer with a "report of what she did for the

instruction"
week; and the salesperson needed to attend a weekly "school of regarding the proper

way to sell goods. See id at 174, 372.

19. There is no connection between the facts of the Morton case and the case at

bar. The evidence here is that USM issued a work order to ONE-A, and provided no direction as to

"M" "I"
the means and methods of how ONE-A performed itswork. See Exhibits and at pp. 23-26,

29, 46, 52 of the Pimer Affirmation.

20. The contract between USM and ONE-A is clear, and states that ONE-A is

"L"
an independent contractor. See Exhibit of the Pimer Affirmation. Additionally, Mr. Pelaez (on

behalf of ONE-A) testified that: 1) the store cleaners were employees of ONE-A: 2) Mr. Pelaez

directed ONE-A employees on the rules and instructions: 3) ONE-A provided their own equipment;

4) that ONE-A keot emoloyee logs of what tasks were cerformed on a daily basis; 5) no one, other

than ONE-A over saw ONE-A's day to day tasks; and 6) that the TRU manager told ONE-A where

word." "I"
to start their work and testified that the TRU general nunar had the "last See Exhibit

of the Pimer Affirmation at pp. 23-26, 29, 46, 52. USM had no presence at the Accident Location,

was not onsite when ONE-A was performing services pursuant to the work order, and did not in any

way control ONE-A's work. As USM could not have and did not control ONE-A's work at the

Accident Location USM cannot be liable. See Meehan v. County of Suffolk, 144 A.D.3d 640, 40

N.Y.S.3d 494 (2d dep't ("Minimal or incidental control over a person's work product without
2016)

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direct supervision or input over the means used to complete the work is insufficient to establish a

traditional employment relationship."); Lopez v.Allied Amusement Shows, Inc., 83 A.D.3d 519, 921

N.Y.S.2d 231 (1st Dep't 2011).

21. It isblack letter law that a contractor cannot be held vicariously liable for

any negligence on the part of its independent subcontractor where itdoes not control the manner

in which work is done. Specifically, the Second Department has stated that "it is well settled that

one who hires an independent contractor is not liable for the independent contractor's negligent

done."
acts because the employer has no right to control the manner in which the work is to be

Mercado v. Slope Associates, 246 A.D.2d 581, 667 N.Y.S.2d 289 (2d Dep't 1998) (granting

summary judgment where the plaintiff failed to establish that the defendant exercised any control

over the method or manner in which the independent contractor performed his duties, and was

thus insufficient to raise a triable issue of fact as to whether the defendant supervised the

independent contractor). In the instant case, like in Mercado, there is no evidence that USM

controlled ONE-A's work at the Accident Location.

22. By PLAINTIFF's own admission, "USM was hired by TRU to provide

cleaning services for the [Accident Location]. USM then hired ONE-A to provide the actual

cleanina services at the f Accidentl location. See PLAINTIFF's Opposition at ¶ 22 ; seealso Exhibits

"K" "L"
and to the Pimer Affirmation. On the date of the Accident ONE-A received a work order

Service" "M"
to perform a "Special at the Accident Location. See Exhibit of the Pimer Affirmation.

USM's only involvement was to provide work orders to its subcontractors and perform occasional

"F"
audits. See Exhibit of the Pimer Affirmation at p. 18-19.

23. PLAINTIFF also incorrectly asserts that Mr. Pelaez testified that he received

instructions"
"specific cleaning through the vendor portal. See PLAINTIFF's Affirmation in

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Opposition at ¶ 23. The testimony referred to by PLAINTIFF states only that the vendor portal is

"I"
what was used to receive an assigmnent via a work order. See Exhibit of the Pimer Affirmation

at p. 31-32.

24. Finally, Plaintiff incorrectly asserts that TRU did not maintain control of the

store floor. See Plaintiff's Opposition at ¶ 21. The evidence could not be clearer, when ONE-A

finished performing work on the date of the Accident, itwas a TRU manager who signed off on the

"M"
work being completed satisfactorily. See Exhibit to the Pimer Affirmation. IfTRU maintained

no control over the sales floor, they would not have inspected the work performed or checked in

with ONE-A.

25. PLAINTIFF can provide no evidence that USM maintained any control

over ONE-A. It is clear from the evidence that ONE-A was an independent contractor and as

there is no conflicting evidence the question is properly determined as a matter of law. Lombardi

v. Alpine Overhead Doors, Inc., 92 A.D.3d 921, 939 N.Y.S.2d 528 (2d Dep't 2012).

26. Finally, PLAINTIFF relies on the holdings in Nowack v. Metropolitian S.R.

Co., 166 N.Y. 433, 60 N.E. 32 (1901) and Reynolds v. Snow, 10 A.D.2d 101, 197 N.Y.S.2d 590 (1st

Dep't 1960) in an effort to establish that a principal can be held civilly liable for the tortious acts of

his agent. Neither of these cases are applicable on the facts.

27. While the underlying facts of Nowack, a case from 1901 involving a horse

drawn carriage, involved a negligence action, the issue before the court was whether a defendant

could be held liable for the actions of an investigator that ithired to take witness statements, who

took bribes without instruction from the defendant to do so. Nowack, 16 N.Y. at 433-34, 437, 60

N.E. at 33. Plaintiff relies on the statement that a corporation will be held liable for the actions of

him,"
itsagents ifhis actions are "within the general scope of the matter entrusted to such as taking

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witness statements. Id at 438, at 33. However, as illustrated above USM cannot be held vicariously

liable for the actions of ONE-A because it did not maintain control over itswork at the Accident

Location and the relationship between the parties is that of contractor and subcontractor, and not

employer and employee.

28. Plaintiff's reliance on the holding in Reynolds, is also misplaced. The

plaintiffs in Reynolds brought claims against the Defendants for breach of duty to procure shares of

a company for the plaintiffs, and instead purchased them for his wife. Reynolds, 10 A.D.2d at 103,

197 N.Y.S.2d at 592-93. Plaintiff relies on the Court's statement that "[glenerally an agent's

principal."
knowledge, and even fraud, is imputed to his Id at 109, at 598 (emphasis added).

However, the issue before the Court in Reynolds was not one of negligence but rather, whether or

not the defendant's wife knew of the breach and whether she took interest in the subject shares. Id

at 109, at 598. The First Department does not address any effect on a contractor, but rather the

relationship between a husband and wife and itseffect on the principal and agent relationship, which

is not remotely at issue in the instant case. Id at 110, at 599.

29. Neither case involves a contractor being held vicariously liable forthe actions

of itssubcontractor and neither case is relevant to the instant case.

30. Based on the foregoing, as the facts clearly demeñstrate USM had no control

over ONE-A, USM cannot be held vicariously liable for ONE-A. USM is entitled to Summary

Judgment.

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CONCLUSION

WHEREFORE, it is respectfully requested that USM's motion for summary

judgment be granted in its entirety and all claims and cross-claims asserted against USM be

dismissed, together with such other reliefas this Court may deem just and proper.

Dated: New York, New York

January 7, 2018

AMY PIMER, ESQ.

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Case Info

Judge

Landicino Track Judge’s New Case

Case No.

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Document Filed Date

January 07, 2019

Case Filing Date

December 02, 2016

County

Parties

BERKOVICH, YEKATERINA Attorney for the Defendant
COSTELLO, MARIE G Attorney for the Plaintiff
DELIYANNIS, THEODORE Attorney for the Defendant
FARRELL, EILEEN MCCAFFERY Attorney for the Defendant
Marlene Flores Plaintiff
MILLS, MICHAEL JAMES Attorney for the Plaintiff
ONE-A CLEANING & MAINTENANCE CORP. Defendant
PIMER, AMY Attorney for the Defendant
SIMON, ROGER L Attorney for the Plaintiff
US MAINTENANCE, INC. Defendant
WOLF, THOMAS S. Attorney for the Defendant
GEORGE COSTELLO Attorneys for Plaintiffs

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