Davis v. Eab-Tab Enters.
| Decision Date | 29 November 2018 |
| Docket Number | 526451 |
| Citation | 88 N.Y.S.3d 302,166 A.D.3d 1449 |
| Parties | Kody DAVIS et al., Respondents, v. EAB–TAB ENTERPRISES et al., Defendants and Third-Party Plaintiffs-Respondents; Utica First Insurance Company, Third–Party Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
166 A.D.3d 1449
88 N.Y.S.3d 302
Kody DAVIS et al., Respondents,
v.
EAB–TAB ENTERPRISES et al., Defendants and Third-Party Plaintiffs-Respondents;
Utica First Insurance Company, Third–Party Defendant-Appellant.
526451
Supreme Court, Appellate Division, Third Department, New York.
Calendar Date: October 9, 2018
Decided and Entered: November 29, 2018
Farber Brocks & Zane LLP, Garden City (Sherri N. Pavloff, New York, of counsel), for third-party defendant-appellant.
Napoli Shkolnik, PLLC, New York City (Craig Phemister of counsel), for respondents.
Joseph H. Warren, Coxsackie, for defendants and third-party plaintiffs-respondents.
Before: McCarthy, J.P., Devine, Mulvey, Rumsey and Pritzker, JJ.
MEMORANDUM AND ORDER
Pritzker, J.
In March 2015, plaintiff Kody Davis, a laborer who was working short term with defendant Thomas Bender on sheetrock and painting in a building owned by defendants, was injured when a drill operated by Bender penetrated the floor where he was working and made contact with Davis' foot. In July 2015, Davis and his spouse, derivatively, filed a complaint alleging negligence and Labor Law violations. Subsequently, defendants notified their insurer, third-party defendant, Utica First Insurance Company, of the claim and Utica First denied coverage based primarily on an employee exclusion within the policy.1 Thereafter, Supreme Court granted a motion made by plaintiffs seeking to amend their summons and complaint. The amended verified complaint removed allegations of Labor Law violations, including averments that Davis was an employee, and only asserted causes of action sounding in negligence. Defendants then filed an amended answer seeking to implead Utica First. Subsequently, Utica First moved, among other things, to dismiss the third-party complaint arguing, as a matter of law, that it had no obligation to defend or indemnify defendants, as the insurance policy clearly excluded employees. In its reply affirmation, Utica First further alleged collusion among the other parties' to "create coverage where none had existed" by amending the pleadings and steering discovery to trigger coverage. Supreme Court treated the motion to dismiss as one for summary judgment pursuant to CPLR 3211(c) and, finding that Davis was an independent contractor as a matter of law, denied the motion and the request for a declaratory judgement. We affirm denial of Utica First's motion but for a different reason, as we find a triable issue of fact as to whether Davis was an employee or independent contractor.
" ‘The critical inquiry in determining whether an employment relationship exists pertains to the degree of control exercised by the purported employer over the results produced or the means used to achieve the results[,] and the factors relevant to assessing...
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Hearsay
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Hearsay
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