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No Mall Respondeat Superior (NY)

July 30, 2020

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<p style="text-align: justify;">The distinctions between independent contractors and employees can determine liability in many circumstances. Here, we have an appellate decision that found that defendants were not liable for any of plaintiff’s injuries on that distinction. In <em><a href="https://www.wcmlaw.com/wp-content/uploads/2020/07/Athenas-v.-Simon-Prop.-Group-LP.pdf">Athenas v. Simon Prop. Group, LP</a>,</em> plaintiff slipped and fell on floor cleaner in the interior common area of a Long Island mall, in front of a Cohen’s Optical store. The floor cleaner was poured by a janitor hired by Cohen who performed cleaning services at their store once a week. Both Simon and Cohen were granted summary judgment. The Appellate Division Second Department affirmed the trial court's determination in favor of Cohen because it did not occupy, control or make special use of the common area in front of their storefront. Further, Cohen was not responsible for the janitor’s negligence because she was an independent contractor, and not an employee. The court looked at relevant factors such as whether the janitor worked at her own convenience, whether she was free to engage in other employment, whether she was receiving fringe benefits, payroll and on a fixed schedule. The janitor testified she was paid cash-only, she received no other benefits from Cohen, she had several other clients whom she cleaned for, and she did not have fixed hours. The Appellate Division affirmed summary judgment in favor of Simon because they did not create or have actual or constructive notice of the hazardous condition. Of course, Simon also claimed it did not control the actions of the janitor.</p>
<p style="text-align: justify;">Defendants thwarted Plaintiff's attempts to establish vicarious liability of the deeper pockets by proving that an employer/employee <em>relationship</em> did not exist.  The criteria accepted by the New York Courts are on full display in this case.  This is another in the long list of cases in New York that stand for the proposition that one may not be liable for the negligent acts of an independent contractor.</p>
Thanks to Raymond Gonzalez for his post.  Please contact <a href="mailto:vterrasi@wcmlaw.com">Vincent Terrasi</a> with any questions or or comments.
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