Wednesday, June 2, 2010

Subrogation Claims Against Fire District and Parties Who Retained Negligent Independent Contractor Dismissed

United Servs. Auto. Assn. v. Wiley
(2nd Dept., decided 5/25/2010)

On behalf of his neighbor O'Brien, townhouse owner Smith hired independent contractor Wiley to do some roofing work on a shared roof.  During the work, a fire apparently started when an open flame being used to solder copper gutters ignited a wood fascia board.  The fire caused damage to the units owned by O'Brian, Smith, and another townhouse owner, Powers.  The fire was extinguished by the Eastchester Fire District.  After paying Powers' claim, Powers' insurer commenced a subrogation action against Wiley, O'Brien, Smith, and the Eastchester Fire District. Eastchester, O'Brien and Smith moved for summary judgment, which motions were denied.

In vacating its March 2009 decision upon Eastchester's motion to reargue and MODIFYING the order appealed from to grant Eastchester's, O'Brien's and Smith's motions for summary judgment, the Second Department held:
  • O'Brian and Smith demonstrated their prima facie entitlement to judgment as a matter of law by submitting evidence that they were not negligent in the happening of the fire and that Wiley was an independent contractor for whose alleged negligence they could not be held liable.  In opposition, no party raised a triable issue of fact as to whether Wiley was an independent contractor, or whether any exception to the general rule of nonliability applied.

  • The Eastchester Fire District demonstrated, prima facie, that it was entitled to summary judgment dismissing all complaints and cross claims insofar as asserted against it. "Government action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff, apart from any duty to the public in general" (McLean v City of New York, 12 NY3d 194, 203). Here, in the absence of a special relationship with an injured party, the Eastchester Fire District could not be held liable for the actions of its employees. The Eastchester Fire District demonstrated, prima facie, that such a relationship was lacking as to any injured party.

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