Chiloyan v. Chiloyan

• Decision Date: 18 August 2021
• Docket Number: Index No. 150991/14,2019–12546
• Citation: 152 N.Y.S.3d 717,197 A.D.3d 612
• Parties: Vanik CHILOYAN, appellant, v. Eduard CHILOYAN, respondent.
• Court: New York Supreme Court — Appellate Division

197 A.D.3d 612
152 N.Y.S.3d 717

Vanik CHILOYAN, appellant,
v.
Eduard CHILOYAN, respondent.

2019–12546
Index No. 150991/14

Supreme Court, Appellate Division, Second Department, New York.

Argued—May 10, 2021
August 18, 2021

152 N.Y.S.3d 718

Law Office of Yuriy Prakhin, P.C. (John F. Clennan, Ronkonkoma, NY, of counsel), for appellant.

Wilson Elser Moskowitz Edelman & Dicker, LLP, White Plains, N.Y. (Karen H. Tommer and Lindsay Kalick of counsel), for respondent.

SYLVIA O. HINDS–RADIX, J.P., FRANCESCA E. CONNOLLY, ANGELA G. IANNACCI, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

197 A.D.3d 612

In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court,

197 A.D.3d 613

Richmond County (Kim Dollard, J.), dated October 18, 2019. The judgment, upon a decision of the same court (Kenneth R. McGrail, Ct. Atty. Ref.) dated February 14, 2019, made after a framed-issue hearing, determining, in effect, that the defendant established his affirmative defense that the action was barred by the Workers’ Compensation Law, and upon an order of the same court dated March 22, 2019, directing dismissal of the complaint, is in favor of the defendant and against the plaintiff dismissing the complaint.

152 N.Y.S.3d 719

ORDERED that the judgment is reversed, on the law, with costs, the order dated March 22, 2019, and the decision dated February 14, 2019, are vacated, the complaint is reinstated, and the defendant's affirmative defense that the action is barred by the exclusivity provisions of the Workers’ Compensation Law is dismissed.

In 2010, the defendant, individually, entered into an agreement, titled "independent contractor agreement," pursuant to which he agreed to lease a van and use it to transport passengers for nonparty R.W. Express, LLC, doing business as Go Airlink (hereinafter R.W. Express). The defendant formed Van Air Service, Inc. (hereinafter Van Air), for the purpose of operating the van, which was registered in his name, for R.W. Express. The plaintiff and the defendant operated the van to transport passengers for R.W. Express. R.W. Express issued one weekly check payable to Van Air based upon the total amount of work performed that week by both men. R.W. Express withheld from the checks funds for workers’ compensation insurance and the lease payments for the van.

On September 16, 2012, the plaintiff allegedly sustained personal injuries when the van, which he was operating, was involved in a collision with another vehicle. The plaintiff filed a claim for workers’ compensation benefits. In October 2013, the Workers’ Compensation Board (hereinafter the Board) determined that the plaintiff was entitled to receive workers’ compensation benefits from the insurance carrier for R.W. Express. After further proceedings before the Board during which the plaintiff's employment status was disputed by the insurance carrier for R.W. Express, the issue was settled with the insurance carrier for R.W. Express agreeing to pay the plaintiff benefits without the Board adjudicating the plaintiff's employment status.

Thereafter, the plaintiff commenced this action against the defendant, as the registered owner of the van, alleging, inter alia, that the plaintiff sustained serious injuries due to the defendant's negligent maintenance of the van. In his answer, the

197 A.D.3d 614

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