           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

1484
CA 12-00921
PRESENT: SMITH, J.P., LINDLEY, SCONIERS, AND VALENTINO, JJ.


MARY J. HALL AND FILLMORE V. HALL,
PLAINTIFFS-RESPONDENTS,

                      V                           MEMORANDUM AND ORDER

CITY FENCE, INC., DEFENDANT-RESPONDENT,
DR. R. REED STEVENS, DEFENDANT-APPELLANT,
ET AL., DEFENDANTS.


BURGIO, KITA & CURVIN, BUFFALO (STEVEN P. CURVIN OF COUNSEL), FOR
DEFENDANT-APPELLANT.

WEBSTER SZANYI LLP, BUFFALO (MARK C. DAVIS OF COUNSEL), FOR
PLAINTIFFS-RESPONDENTS.

LIPPMAN O’CONNOR, BUFFALO (MATTHEW J. DUGGAN OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Patrick
H. NeMoyer, J.), entered March 19, 2012. The order, among other
things, denied the motion of defendant Dr. R. Reed Stevens for summary
judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: We affirm for reasons stated in the decision at
Supreme Court. We add only that, to the extent that the amended
complaint, as amplified by the bill of particulars, may be construed
as alleging that defendant Dr. R. Reed Stevens is vicariously liable
for the alleged negligence of defendant City Fence, Inc. (City Fence),
the court properly noted in its decision that no such liability can
attach because City Fence is an independent contractor (see Kleeman v
Rheingold, 81 NY2d 270, 273-274).




Entered:    February 1, 2013                    Frances E. Cafarell
                                                Clerk of the Court
