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SURF TURF RESTAURANT CORP. et al., Appellants, v. PEGASUS AGENCY, INC., et al., Respondents.

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 N.Y.2d 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 A.D.2d 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.

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SURF TURF RESTAURANT v. PEGASUS AGENCY
(Aug 5, 1991)