The title of this article is a non-legalese (read: normal) way of explaining what a "non-delegable duty" is under New York law.

And, in the April 15 edition of the New York Law Journal, there is a decision from a Kings County trial judge in Simon v. Astoria Federal Savings, et ano that analyzes how a non-delegable duty is treated when the one with the duty, in this case a landowner, contracts away the handling of this duty to an independent contractor, such as a snow removal company (this same rule would apply in construction site accident cases, as pointed out in "How to Prove a Construction Site Accident Case in New York"):

"Generally, under the rubric of 'nondelegable duty,' a party who retains an independent contractor will be found vicariously liable for the negligence of the contractor where the employer "is under a statutory duty to perform or control the work," or "is under a duty to keep premises safe," (See Paul Brothers v. New York State Elec. & Gas Corp., 11 NY3d 251, 257-59 [2008] [quoting Rosenberg v. Equitable Life Assur. Socy. of U.S., 79 NY2d 663, 668 (1992)].) A property owner will, therefore, be vicariously liable where an independent contractor's snow removal efforts cause or exacerbate a dangerous snow or ice condition on the premises. (See Olivieri v. G M Realty Co., LLC, 37 AD3d 569, 570 [2d Dept 2007]; see also Backiel v. Citibank, N.A., 299 AD2d 504, 505-07 [2d Dept 2002]; Stockdale v. City of New York, 294 AD2d 195, 196 [2d Dept 2002].) This liability is not avoided by "a comprehensive contract for general maintenance." (See id. [Feurstein, J., dissenting].)

In other words, although you may be entitled to be indemnified by the contractor if the accident occurs as a direct result of the contractor's failure to execute properly their responsibilities under its service contract, that still does not give the landowner a free pass; otherwise, the non-delegable duty imposed on the landowner by the New York State legislature would be effectively rendered meaningless.

Jonathan Cooper
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Non-Compete, Trade Secret and School Negligence Lawyer
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