Fiscina v. Boro Rug & Carpet Warehouse Corp.

• Court: New York Supreme Court — Appellate Division
• Citation: Fiscina v. Boro Rug & Carpet Warehouse Corp., 195 A.D.3d 998, 151 N.Y.S.3d 131 (N.Y. App. Div. 2021)
• Decision Date: 30 June 2021
• Docket Number: 2019–03573,Index No. 10378/15
• Parties: Patricia FISCINA, plaintiff-respondent, v. BORO RUG & CARPET WAREHOUSE CORP., appellant, St. James Realty NY, LLC., defendant-Respondent, et al., defendants.

195 A.D.3d 998

151 N.Y.S.3d 131

Patricia FISCINA, plaintiff-respondent,

v.BORO RUG & CARPET WAREHOUSE CORP., appellant,St. James Realty NY, LLC., defendant-Respondent, et al., defendants.

2019–03573

Index No. 10378/15

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

Argued—May 3, 2021

June 30, 2021

Litchfield Cavo, LLP, New York, N.Y. (Justin T. Shain of counsel), for appellant.

Winkler Kurtz, LLP, Port Jefferson Station, N.Y. (Jason W. Hake of counsel), for plaintiff-respondent.

HECTOR D. LASALLE, P.J., SYLVIA O. HINDS–RADIX, FRANCESCA E. CONNOLLY, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant Boro Rug & Carpet Warehouse Corp. appeals from an order of the Supreme Court, Suffolk County (David T. Reilly, J.), dated March 4, 2019. The order, insofar as appealed from, denied the motion of the defendant Boro Rug & Carpet Warehouse Corp. for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.

ORDERED that the order is affirmed insofar as appealed from, with costs.

In April 2014, the plaintiff allegedly sustained injuries when she tripped and fell over a raised piece of carpeting that was being installed in front of an elevator at her place of employment. The carpet was being installed as part of a renovation project. The defendant Icon Interior Design, Inc. (hereinafter Icon), the general contractor on the project, subcontracted the carpet installation work to the defendant Boro Rug & Carpet Warehouse Corp. (hereinafter Boro Rug), and Boro Rug hired the defendant Fredy Cruz to perform the work.

In June 2015, the plaintiff commenced this personal injury action. Boro Rug moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, contending, among other things, that Cruz was an independent contractor and, in any event, the plaintiff could not identify the cause of her fall. In an order dated March 4, 2019, the Supreme Court, inter alia, denied Boro Rug's motion. Boro Rug appeals.

"The general rule is that an employer who hires an independent contractor is not liable for the independent contractor's negligent acts" ( Rosenberg v. Equitable Life Assur. Socy. of U.S., 79 N.Y.2d 663, 668, 584 N.Y.S.2d 765, 595 N.E.2d 840 ; see Athenas v. Simon Prop. Group, LP, 185 A.D.3d 884, 885, 128 N.Y.S.3d 284 ). "The determination of whether an employer-employee relationship exists turns on whether the alleged employer exercises control over the results produced, or the means used to achieve the results. Control over the means is the more important consideration" ( Fenster v. Ellis, 71 A.D.3d 1079, 1080, 898 N.Y.S.2d 582 [internal quotation marks omitted]). "Factors relevant to assessing control include whether the worker (1) worked at 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, Inc., 1 N.Y.3d 193, 198, 770 N.Y.S.2d 692, 802 N.E.2d 1090 ; see Colon v. Compass Group USA, Inc., 188 A.D.3d 800, 801, 135 N.Y.S.3d 438 ). "[I]ncidental control over the results produced without further indicia of control over the means employed to achieve the results will not constitute substantial evidence of an employer-employee relationship" ( Weinfeld v. HR Photography, Inc., 149 A.D.3d 1014, 1015, 52 N.Y.S.3d 458 [internal quotation marks omitted]). "Whether an actor is an independent contractor or an employee for the purposes of tort liability is usually a factual issue for the jury. However, where there is no conflict in the evidence, the question may properly be determined as a matter of law" ( Lombardi v. Alpine Overhead Doors, Inc., 92 A.D.3d 921, 921, 939 N.Y.S.2d 528 [internal quotation marks omitted]).

Here, Boro Rug failed to eliminate triable issues of fact as to whether Cruz was an independent contractor at the time of the accident. It was undisputed that Boro Rug hired and paid Cruz on a project by project basis, that Cruz retained his own personnel to assist on the job, that Cruz utilized...