CRAIG TSCHETTER AND PARK HOMES & DEVELOPMENT, INC., PLAINTIFFS,
SAM LONGS' LANDSCAPING, INC., DEFENDANT-APPELLANT, AND GRAND ISLAND CENTRAL SCHOOL DISTRICT, DEFENDANT-RESPONDENT.
BAASE PFALZGRAF CUNNINGHAM COPPOLA LLC, BUFFALO (SEAN W.
COSTELLO OF COUNSEL), FOR DEFENDANT-APPELLANT.
WEBSTER SZANYI, LLP, BUFFALO (JEREMY A. COLBY OF COUNSEL),
PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, NEMOYER, AND
from an order of the Supreme Court, Erie County (Donna M.
Siwek, J.), entered March 6, 2017. The order, among other
things, denied those parts of the motion of defendant Sam
Longs' Landscaping, Inc. for summary judgment seeking
indemnification from defendant Grand Island Central School
District and dismissing the District's cross claim
against it for indemnification.
hereby ORDERED that the order so appealed from is unanimously
affirmed without costs.
In 2009, defendants, Grand Island Central School District
(District) and Sam Longs' Landscaping, Inc. (SLL),
entered into an agreement whereby SLL was to excavate and
repair a drainage ditch that was causing flooding in one of
the District's school buildings. The agreement provided,
inter alia, that SLL would obtain any "necessary
permits" for the work. The work was completed by SLL,
and the District paid the agreed-upon price.
plaintiffs commenced the instant action against, inter alia,
the District and SLL, alleging that a portion of the drainage
ditch was located on their property and altered without their
knowledge or consent. They further alleged that the change in
the drainage ditch resulted in damages to them.
discovery, SLL moved for summary judgment seeking
indemnification from the District, as well as for leave to
amend its answer to "re-assert" its cross claim for
indemnification against the District in the event that
Supreme Court deemed such amendment necessary. SLL also
sought summary judgment dismissing the District's cross
claim against it for indemnification. SLL argued that the
District was the party actively at fault and should indemnify
SLL for any damages flowing from any trespass that occurred
at its request, was for its benefit, and was necessary to
complete the contract. The District cross-moved for summary
judgment on its cross claim against SLL for indemnification,
arguing that SLL was the party required under the agreement
to acquire permission to do the work on plaintiffs'
property. The court granted only that part of SLL's
motion seeking leave to amend its answer and otherwise denied
the motion. The court also denied the District's cross
motion. SLL appeals from the order insofar as it denied those
parts of its motion seeking indemnification against the
District and dismissal of the District's cross claim for
conclude that the court properly denied the motion of SLL
insofar as it sought indemnification from the District and
dismissal of the District's cross claim for
indemnification. In addition, although the District has not
appealed from the order insofar as the court denied its cross
motion, the District asks us to search the record and grant
the cross motion (see Dunham v Hilco Constr. Co., 89
N.Y.2d 425, 429-430 ; Merritt Hill Vineyards v
Windy Hgts. Vineyard, 61 N.Y.2d 106, 111 ), which
we decline to do.
general rule in New York is that a party who retains an
independent contractor is not liable for the independent
contractor's negligent acts (see Kleeman v
Rheingold, 81 N.Y.2d 270, 273-274 ). "The
primary justification for this rule is that one who employs
an independent contractor has no right to control the manner
in which the work is to be done and, thus, the risk of loss
is more sensibly placed on the contractor' "
(Brothers v New York State Elec. & Gas Corp., 11
N.Y.3d 251, 257-258 , quoting Kleeman, 81
N.Y.2d at 274). There are various exceptions to that general
rule including, as relevant to the instant case, that an
owner may be liable for trespass if the owner directs the
trespass or a trespass is necessary to complete the contract
(see Gracey v Van Camp, 299 A.D.2d 837, 838 [4th
Dept 2002]; Axtell v Kurey, 222 A.D.2d 804, 805 [3d
Dept 1995], lv denied 88 N.Y.2d 802');">88 N.Y.2d 802 ).
submissions in support of its motion and in opposition to the
District's cross motion established that the District,
not SLL, decided the work that needed to be performed, that
the District knew that the work required going beyond the
District's property line, that the District did not have
a property right permitting it to clean the ditch on
plaintiffs' property, and that the District did not
inform SLL that performing the work would result in a
trespass. On the other hand, the District's submissions
in support of its cross motion and in opposition to SLL's
motion established that SLL, as an independent contractor,
determined what work needed to be done on the ditch to remedy
the situation, and that SLL identified in a written cost
estimate the area of the ditch that needed to be cleaned and
the proposed scope of the work. The District also submitted
evidence that it did not direct the performance of any of the
work, and it highlights that part of the agreement providing
that SLL was required to obtain any necessary permits to
perform the work. Given the above submissions, we conclude
that it cannot be determined as a matter of law whether the
District directed SLL to do the work on plaintiffs'
property and whether ...