Surf & Turf Restaurant Corp. v. Pegasus Agency, Inc. ( 1991 )

— In an action to recover damages for negligence, the plaintiffs appeal from a judgment of the Supreme Court, Westchester County (Wood, J.), entered July 13, 1989, which, upon an order granting the defendants’ motion for judgment during trial as a matter of law, is in favor of the defendants dismissing the complaint.

Ordered that the judgment is affirmed, with costs.

As a general rule, an employer is not liable for the torts of an independent contractor (Whitaker v Norman, 75 NY2d 779). We reject the plaintiffs’ contentions that the trial court should have submitted to the jury the question of whether the relationship between the defendants and Frank Giordano was that of an employer/independent contractor or that of master/servant. Based on the evidence adduced at trial, no rational finder of fact could have concluded that the relationship was one of master/servant (see, Dolitsky v Bay Isle Oil Co., 111 AD2d 366). Accordingly, it was appropriate for the trial court to award judgment in favor of the defendants as a matter of law and dismiss the complaint.

The plaintiffs’ remaining contentions are without merit. Kunzeman, J. P., Rosenblatt, Miller and Ritter, JJ., concur.