D. S. v. Positive Behavior Support Consulting & Psychological Res.
| Decision Date | 04 August 2021 |
| Docket Number | 2019-09135,Index 614713/18 |
| Citation | 2021 NY Slip Op 04626 |
| Parties | D. S., etc., et al., respondents, v. Positive Behavior Support Consulting and Psychological Resources, P.C., et al., defendants, Port Jefferson School District, appellant. |
| Court | New York Supreme Court |
Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, NY (Christine Gasser of counsel), for appellant.
Panetta Aminov, P.C., Islip, NY (Frank C. Panetta of counsel), for respondents.
COLLEEN D. DUFFY, J.P. FRANCESCA E. CONNOLLY VALERIE BRATHWAITE NELSON PAUL WOOTEN, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, etc., the defendant Port Jefferson School District appeals from an order of the Supreme Court, Suffolk County (Sanford Neil Berland, J.), dated July 11, 2019. The order, insofar as appealed from, denied that branch of that defendant's motion which was pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against it.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The infant plaintiff allegedly was injured on May 16, 2017, while participating in a behavioral therapy session at his home when the defendant Vito Silecchia, a therapist, allegedly grabbed the infant plaintiff, twisted his arm, and caused him to fall to the ground. The infant plaintiff, who was 14 years old at the time of the incident, had been diagnosed with autism and was a special education student in the defendant Port Jefferson School District (hereinafter the District). The infant plaintiff was subject to an individualized education plan, which provided for the infant plaintiff and his family to receive parent training services, among other services. The plaintiffs commenced the instant personal injury action against the District, Positive Behavior Support Consulting and Psychological Resources, P.C. (hereinafter PBS), and Silecchia. The plaintiffs alleged in the complaint that Silecchia was an agent, servant, and/or employee of, among others, PBS and the District.
The District filed a pre-answer motion, inter alia, pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint insofar as asserted against it, contending, inter alia, that it retained PBS as an independent contractor to provide certain services, including parent training services, and that PBS retained Silecchia. In support of its motion, the District submitted, among other things, a copy of an agreement between the District and PBS dated July 1, 2016 (hereinafter the agreement). The Supreme Court denied that branch of the District's motion which was pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint insofar as asserted against it, and the District appeals.
On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the complaint is to be afforded a liberal construction (see CPLR 3026). The facts as alleged in the complaint are accepted as true, the plaintiff is afforded the benefit of every possible favorable inference, and the court determines only whether the facts as alleged fit within any cognizable legal theory (see Leon v Martinez, 84 N.Y.2d 83, 87-88). Under CPLR 3211(a)(1), dismissal is only warranted where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law (see Goshen v Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326; Leon v Martinez, 84 N.Y.2d at 88). Under CPLR 3211(a)(7), the burden never shifts to the nonmoving party to rebut a defense asserted by the moving party (see Sokol v Leader, 74 A.D.3d 1180, 1181). Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, "the criterion is whether the proponent of the pleading has a cause of action, not whether [the proponent] has stated one, and, unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, ... dismissal should not eventuate" (Guggenheimer v Ginzburg, 43 N.Y.2d 268, 275). "Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss" (EBC I, Inc. v Goldman, Sachs & Co., 5 N.Y.3d 11, 19).
(Rivera v Fenix Car Serv. Corp., 81 A.D.3d 622, 623; see Brothers v New York State Elec. & Gas Corp., 11 N.Y.3d 251, 257; McHale v Metropolitan Life Ins. Co., 165 A.D.3d 914, 915-916). "Whether an actor is an independent contractor or an employee is usually a factual issue for a jury" (Rivera v Fenix Car Serv. Corp., 81 A.D.3d at 623; see Singh v Sukhu, 180 A.D.3d 834, 837).
"Control of the method and means by which the work is to be done is the critical factor in determining whether one is an independent contractor or an employee for purposes of tort liability" (Nachman v Koureichi, 165 A.D.3d 818, 820; see Sanabria v Aguero-Borges, 117 A.D.3d 1024, 1025; Begley v City of New York, 111 A.D.3d 5 28). "Factors relevant to assessing control include whether the worker (1) worked at [her or] his own convenience, (2) was free to engage in other employment, (3) received fringe benefits, (4) was on the employer's payroll, and (5) was on a fixed schedule" (Bynog v Cipriani Group, 1 N.Y.3d 193, 198; see Nachman v Koureichi, 165 A.D.3d at 820). "[I]ncidental control over the results produced without further indicia of control over...
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