Recitation as per CPLR §§ 2219(a) and/or 3212(b) of papers considered on review of this motion:

Upon the foregoing cited papers and after considering oral argument on November 26, 2024, pursuant to CPLR § 3212, Defendant Brooklyn Union Gas Company d/b/a National Grid [*2]NY's ("BUG") Motion for Summary Judgment and dismissing Plaintiff's complaint and any crossclaims is GRANTED.

Plaintiff commenced the instant action by filing a summons and verified complaint on October 20, 2016.^[FN1] Plaintiff seeks damages for personal injuries sustained in a trip and fall incident that occurred on June 28, 2016, at or near West 30th Street and Mermaid Avenue in Brooklyn, New York.^[FN2] Plaintiff alleges she tripped and fell when stepping over a metal plate on the sidewalk at the subject location.^[FN3] On June 28, 2018, Plaintiff filed an Amended Complaint naming BUG as a Defendant to the action.^[FN4] On December 13, 2018, Defendant BUG filed its verified answer to Plaintiff's amended complaint ^[FN5] and on July 17, 2018, the City Defendant filed its verified answer to Plaintiff's amended complaint.^[FN6]

Defendant BUG filed its instant summary judgment motion on April 24, 2024.^[FN7] BUG argues it is entitled to summary judgment because it did not cause or create the subject defect identified by Plaintiff and cannot be held responsible for the alleged negligent acts of independent contractor Hallen Construction Company ("Hallen").^[FN8] In opposition, Plaintiff argues that Defendant BUG's motion must be denied on multiple grounds, including: that Defendant BUG's responsibility for the metal plate has been previously determined; that Defendant BUG has a duty to keep the sidewalk in a reasonably safe condition; that Defendant BUG failed to join a necessary party to the action; and that triable issues of fact exist as to Defendant BUG's control of the metal plate because the underlying contract between Defendant BUG and Hallen has not been produced.^[FN9] The City Defendant joins in Plaintiff's opposition also opposes, noting that it joins in the opposition as filed by Plaintiff.^[FN10] In reply, Defendant BUG argues that the "law of the case" doctrine does not apply, they had no contractual or other non-delegable duty to the [*3]Plaintiff under the circumstances, and they did not fail to join a necessary party.^[FN11]

Standard of Review

A party moving for summary judgment bears the burden of making a prima facie showing of entitlement to judgment as a matter of law by submitting sufficient evidence in admissible form to demonstrate the absence of any material factual issues. See CPLR § 3212 (b); Alvarez v Prospect Hospital, 68 NY2d 320, 324 (1986); Zuckerman v City of New York, 49 NY2d 557, 562 (1980); Korn v Korn, 135 AD3d 1023, 1024 (3d Dept. 2016). Failure to make this prima facie showing results in denial of the motion. See Alvarez, 68 NY2d at 324; Winegrad v New York University Medical Center, 64 NY2d 851, 853 (1985). Once the moving party has made this showing, the burden shifts to the opposing party to produce evidence sufficient to establish triable issues of fact. See CPLR 3212; Alvarez, 68 NY2d at 324; Zuckerman, 49 NY2d at 562. "[A]verments merely stating conclusions, of fact or of law, are insufficient to defeat summary judgment." Banco Popular North America v Victory Taxi Management, Inc., 1 NY3d 381, 383 (2004) (internal quotations omitted). The Court must view the totality of evidence in the light most favorable to the nonmoving party and accord that party the benefit of every favorable inference. See Fortune v Raritan Building Services Corp., 175 AD3d 469, 470 (2d Dept. 2019); Emigrant Bank v Drimmer, 171 AD3d 1132, 1134 (2d Dept. 2019).

Defendant BUG's Summary Judgment Motion

The general rule is that an employer who hires an independent contractor is not liable for the negligent acts of that independent contractor. Kleeman v. Rheingold, 81 NY2d 270 (1993); Sanabria v. Aguero-Borges, 117 AD3d 1024 (2d Dept. 2014). The critical factor in determining whether one is an independent contractor is the degree of control the employer has over the method and means by with the work is completed. Sanabria, 117 AD3d at 1025. Finally, "the prima facie showing which a defendant must make on a motion for summary judgment is governed by the allegations of liability made by the plaintiff in the pleadings." Hussain v. City of New York, 179 AD3d 1046 (2d Dept. 2020).

Exceptions to this rule include situations where there is negligence in the selection, instruction, or supervision of the contractor; where the work is inherently dangerous; or where there is a non-delegable duty owed by the employer. Bennett v. State Farm Fire & Cas. Co., 198 AD3d 857 (2d Dept. 2021). However, non-delegable duties are generally determined by policy considerations. Bros. v. New York State Elec. & Gas Corp., 11 NY3d 251 (2008) (citing Feliberty v. Damon, 72 NY2d 112 [1988]).

Here, Defendant BUG met its prima facie burden establishing entitlement to judgment as a matter of law. BUG demonstrated it subcontracted the work on the subject sidewalk to Hallen, and merely conducted inspections the work, supported by the EBT testimony and affidavit of consultant Walter Stone and provisions of the contract between BUG and Hallen.^[FN12] See Hussain, 179 AD3d at 1047. Plaintiff and the City Defendant failed to raise a triable issue of fact in opposition, as they presented no admissible evidence to suggest Defendant BUG assumed responsibility for the alleged defect through a contractual or non-delegable duty. Bros., 11 NY3d [*4]at 257-260.

Plaintiff's argument that Defendant BUG's motion must be denied based on the "law of the case" doctrine is misplaced. The prior December 22, 2020,^[FN13] Court Order addressed the liability of the property owner adjacent to the subject sidewalk but did not resolved the issue of Defendant BUG's potential liability.^[FN14] Maldonado v. 527 Lincoln Place, LLC, 173 AD3d 730 (2d Dept. 2019). Therefore, the "law of the case" doctrine is inapplicable here. See Fidler v. Gordon-Herricks Corp., 173 AD3d 840 (2d Dept. 2019) (law of the case doctrine held inapplicable because summary judgment was previously awarded in favor of moving defendants upon grounds specific to those defendants).

Finally, Plaintiff's argument that Defendant BUG's motion should be denied due to the failure to join a necessary party also unavailing. As Defendant BUG correctly argues, failure to join a necessary party is grounds for dismissal under CPLR § 3211, not summary judgment. Smith v. Pasqua, 110 AD3d 710 (2d Dept. 2013).

Based on the foregoing, Defendant BUG's motion for summary judgment is granted. Plaintiff's complaint and any crossclaims against Defendant BUG are dismissed with prejudice.

This constitutes the Decision and Order of the Court.