I respectfully disagree with the majority’s extension in this case of the doctrine of vicarious liability so as to hold a property owner and the owner of a business on the property liable for the negligence of an independent contractor.
There is no question that a landowner must act as a reasonable person in maintaining property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk (see, Basso v Miller, 40 NY2d 233, 241). However, a landowner is not an insurer "liable for every injury no matter the nature of the hazard or how long it has been in place. There must be some proof that the potential danger reasonably could have been neutralized and that its existence was or should have been discovered” by the landowner (see, Preston v State of New York, 59 NY2d 997, 999). In order to recover, a plaintiff must present evidence tending to show either that the defendant knew of a dangerous condition and did not remedy it, or that the condition existed for a sufficient length of time that, in the exercise of reasonable care, the defendant should have known of it (see, Gordon v American Museum of Natural History, 67 NY2d 836).
In this case, there is no evidence that the defendant landowner Corinis or the owner of the business, J & K Diner, Inc., had any notice, actual or constructive, of the allegedly defective condition. The jury’s verdict of no liability on the part of Corinis was fully supported by the record in this regard. At no time during the construction of the diner, or up until the accident, did Corinis learn what the New York State Building Code requirements were with regard to stairways or handrails, and he never received any notice of violation concerning the stairway. Moreover, no one involved in the construction of the diner had ever told him anything about the code requirements. He had never had any difficulty in walking up or down the stairs and no one had ever complained to him about the stairway. Furthermore, as far as he knew, there had been no other accidents on the stairway from the time that the building was built until the time of the accident.
The majority, in order to avoid the problem of the lack of *429notice to Corinis and J&K Diner, Inc., of the alleged defect, would now impose vicarious liability upon them for the negligence of the independent contractor Marathon who constructed the building. I do not believe that such a result is supported by the applicable law or by public policy considerations.
The cases relied upon by the majority for its unwarranted imposition of liability on the landowner in this case are all clearly distinguishable. In Coffey v Dormitory Auth. (26 AD2d 1), the issue was not whether the landowner was liable for the installation of the glass pane into which the plaintiff ran. Rather, the issue in Coffey was whether the landowner’s third-party complaint against the designer, builder, and installer of the glass stated a cause of action for indemnification sufficient to withstand a motion to dismiss pursuant to CPLR 3211 (a) (7). Nowhere in the Coffey decision did the court use language enunciating the principle that the majority attributes to it.
The cases of Boylhart v DiMarco & Reimann (270 NY 217), Petluck v McGolrick Realty Co. (240 App Div 61), and Hanley v Central Sav. Bank (255 App Div 542, affd 280 NY 734), all involved situations where the injury occurred while work was still in progress. None of the three cases involved a situation where, as here, the work had been completed some 18 months prior to the accident. Moreover, each of the three cases involved an inherently dangerous activity which is not present in the case herein. In Boylhart (supra, at 221), ''[t]hirty pieces of steel, ranging from twelve and one-half to sixteen feet long and weighing from 450 to 900 pounds each, piled four feet high in the street, created a condition inherently dangerous to the public unless the work of piling was carefully done”. In Petluck, the plaintiff was injured by rock projectiles from blasting operations. The owner was aware that blasting was being conducted on the premises, yet invited the plaintiff onto the premises anyway. There was also some evidence that the owner’s employees may have been involved in the blasting. In Hanley (supra, at 543), the "[demolition of a building in a crowded section of a city [was] considered as [being] inherently dangerous”. Furthermore, there was evidence that the landowner had retained supervision over the details of the demolition work.
The majority’s reliance upon Restatement (Second) of Torts § 422 is also misplaced. Not only has this provision never been cited with approval by any court in this State, but the principle which it sets forth and which the majority wishes to adopt *430runs contrary to accepted New York case law. The two out-of-State cases cited by the majority in support of section 422 are also distinguishable. Both Koepke v Carter Hawley Hale Stores (140 Ariz 420, 682 P2d 425) and Lipman Wolfe & Co. v Teeples & Thatcher (268 Ore 578, 522 P2d 467), involved injuries to shoppers that occurred while the independent contractors were doing remodeling work in stores which the owners had left open for customers. Moreover, the Koepke case concerned only section 422 (a), which relates to the liability of the possessor of land where he has retained possession of the land while the work is being performed. In addition, in Koepke (supra, 140 Ariz, at 423, 682 P2d, at 428), the court noted that it was "well established that we will follow the Restatement in the absence of Arizona law to the contrary”. I am unaware of any similar judicial policy in this State to blindly adhere to the Restatement.
Furthermore, other jurisdictions have not adopted the Restatement view. For instance, in Kresge Co. v Port of Longview (18 Wash App 805, 573 P2d 1336), the Washington Court of Appeals rejected the applicability of section 422 to a situation where a warehouse roof collapsed. The owner of the warehouse was not vicariously liable for the alleged negligence of the contractor or the architect in constructing the building in the absence of any evidence that the owner controlled the details of their work. The court went on to say that the owner could only be held liable for his own negligence, if any, in failing to use reasonable care so as to discover and discharge the accumulation of water on the roof which led to its collapse. In another case, Mai Kai, Inc. v Colucci (205 So 2d 291 [Fla]), the Supreme Court of Florida held that a restaurant owner could not be held vicariously liable for the negligence of the independent contractor who installed a ceiling fan, when a part of the fan fell and injured a customer. The landowner’s duty was "one of due care or reasonable care in preventing or correcting an unsafe condition, as opposed to absolute liability for a contractor’s negligence” (Mai Kai, Inc. v Colucci, supra, at 293). In the absence of proof that the alleged defect could have been discovered with reasonable care, the landowner was not liable to the customer.
I can perceive of no reason in this case for a departure from the well-established principle that one who engages an independent contractor is not liable for the latter’s negligence in performance (see, Kojic v City of New York, 76 AD2d 828). While there are a number of exceptions to the rule, none of *431them are applicable here, and, as noted earlier, there was no showing that Corinis or J & K Diner, Inc., had actual or constructive notice of the alleged defect (see, Pannone v Burke, 149 AD2d 673; see also, Schwartz v Merola Bros. Constr. Corp., 290 NY 145, 152).
The case of McNulty v Ludwig & Co. (125 App Div 291) involved an injury that occurred after the work had been completed. In McNulty, the plaintiff was injured as he was walking on the sidewalk in front of the defendant’s building and a sign fell on him. The sign had been installed about two weeks before the accident by an independent contractor. The court held that the landowner was not liable for the injury, stating that: "[t]he contractor was not the agent or servant of the defendant, and the latter was not liable for the former’s acts under the maxim respondeat superior. The work of putting up the sign was not inherently dangerous, arid it is difficult to perceive how the defendant can be held negligent for the act of another, not his servant, to whom he had the right to intrust the performance of the work” (McNulty v Ludwig & Co., supra, at 292; see also, Silva v American Irving Sav. Bank, 31 AD2d 620, affd 26 NY2d 727; Hildebrand v Kazmierczak, 25 AD2d 603).
The majority, in deciding that vicarious liability may be imposed upon the property owner and the owner of the business on the property, has necessarily limited the application of the decision to a place of public assembly (which in this case is a place of business frequented by the public) based upon the nondelegable duty of the owners to provide the public with a reasonably safe premises and a safe means of ingress and egress. The majority was not called upon to make a more sweeping decision which would apply to property owners in general because of the particular usage of the premises involved here. Nevertheless, Restatement (Second) of Torts § 422, which is cited with favor by the majority, does not limit its application to owners of property dedicated to public assembly or business purposes where the public is invited. Section 422 applies to "[a] possessor of land” without limitation.
While the private homeowner is not directly affected by this decision, once having broken ground to provide for vicarious liability where properties involve public assembly (i.e., establishments open to the general public), how large a step is it to move to properties owned by individuals for residential purposes? There is, therefore, an important public policy consider*432ation which dictates that the majority’s extension of liability in this case be rejected. While this decision decides the fate of an owner of a diner in Syracuse, New York, the court is pronouncing a rule of liability which is easily and logically extended to each and every property owner in the State. There are thousands of homeowners throughout the State who, at one time or another, have remodeled or renovated their homes by hiring an independent contractor to do the work. The majority is opening the door so that the average homeowner may eventually find that he or she is going to be vicariously liable for any negligent construction by that contractor, regardless of whether the defect was in plain view or hidden, regardless of whether he or she had any notice of the defect, and regardless of how far in the past the work was done. The average homeowner will now have to be as knowledgeable as a carpenter, an electrician, a plumber, or a roofer, so that he or she can be in a position to decide whether work is being done improperly or deviates in some aspect from the New York State Building Code. This is not what the law has been, and this is not what the law should be.
The real problem in this case is that the independent contractor Marathon is now defunct, and that the majority, in its haste to try to find some means of recompensing the plaintiff, has devised a rule with a tremendous adverse impact upon hundreds of thousands of property owners. However, as we all know, not every injury will result in the imposition of legal liability and not every injury is legally compensable. The burden now cast upon the innocent landowner by the majority herein is far greater than any burden that might befall this plaintiff by adhering to traditional case law. Accordingly, I vote to affirm the judgment insofar as appealed from.
Hooper and Sullivan, JJ., concur with Kunzeman, J. P.; Balletta, J., dissents in a separate opinion.
Ordered that the judgment is reversed insofar as appealed from, on the law, and a new trial is granted to the plaintiff on her causes of action against the defendants and third-party plaintiffs, with costs to abide the event. The findings of fact are affirmed.