Surf & Turf Restaurant Corp. v. Pegasus Agency, Inc.

— 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 *803that 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.