Rivera v. Fenix Car Serv. Corp.

• Decision Date: 01 February 2011
• Citation: Rivera v. Fenix Car Serv. Corp., 916 N.Y.S.2d 169, 81 A.D.3d 622 (N.Y. App. Div. 2011)
• Parties: Joselito RIVERA, respondent, v. FENIX CAR SERVICE CORP., appellant.
• Court: New York Supreme Court — Appellate Division

916 N.Y.S.2d 169

81 A.D.3d 622

Joselito RIVERA, respondent,

v.FENIX CAR SERVICE CORP., appellant.

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

Feb. 1, 2011.

Goldman & Grossman, New York, N.Y. (Jay S. Grossman of counsel), for appellant.

Talisman & DeLorenz, P.C. (Shayne, Dachs, Corker, Sauer & Dachs, LLP, Mineola, N.Y. [Jonathan A. Dachs], of counsel), for respondent.

DANIEL D. ANGIOLILLO, J.P., L. PRISCILLA HALL, SHERI S. ROMAN, and JEFFREY A. COHEN, JJ.

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Partnow, J.), dated May 25, 2010, which denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The Supreme Court correctly denied the defendant's motion for summary judgment dismissing the complaint, as the defendant failed to establish its prima facie entitlement to judgment as a matter of law. The plaintiff was struck by a vehicle bearing the defendant's logo. The Supreme Court correctly determined that triable issues of fact exist as to whether the defendant exercised sufficient control over the driver of the subject vehicle to give rise to vicarious liability.

The doctrine of respondeat superior renders a master vicariously liable for a tort committed by his servant within the scope of employment. Conversely, the general rule is that an employer who hires an independent contractor is not liable for the independent contractor's negligent acts ( see Chuchuca v. Chuchuca, 67 A.D.3d 948, 890 N.Y.S.2d 573; Schiffer v. Sunrise Removal, Inc., 62 A.D.3d 776, 879 N.Y.S.2d 518). Whether an actor is an independent contractor or an employee is usually a factual issue for a jury ( see Carrion v. Orbit Messenger, 82 N.Y.2d 742, 602 N.Y.S.2d 325, 621 N.E.2d 692; Schiffer v. Sunrise Removal, Inc., 62 AD3d 776, 879 N.Y.S.2d 518).

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 ( see Chuchuca v. Chuchuca, 67 A.D.3d 948, 890 N.Y.S.2d 573; Kuchinski v. Charge & Ride, Inc., 21 A.D.3d 1062, 803 N.Y.S.2d 596; Abouzeid v. Grgas, 295 A.D.2d 376, 743 N.Y.S.2d 165). Factors relevant to assessing control include whether the worker worked at his or her own convenience, was free to engage in other employment, received fringe benefits, was on the employer's payroll, and was on a fixed schedule ( see Bynog v. Cipriani Group, 1 N.Y.3d 193, 198, 770 N.Y.S.2d 692, 802 N.E.2d 1090; Fenster v. Ellis, 71 A.D.3d 1079, 898 N.Y.S.2d 582; Araneo v. Town Bd. for Town of Clarkstown, 55 A.D.3d 516, 865 N.Y.S.2d 281).

While minimal or incidental control over an employee's workproduct without the employer's direct supervision or input over the means used to complete the work is insufficient to establish a traditional employment relationship ( see Parisi v. Loewen Dev. Corp., 5 A.D.3d 646, 774 N.Y.S.2d 746; Bhanti v. Brookhaven Mem. Hosp. Med. Ctr., 260 A.D.2d 334, 687 N.Y.S.2d 667), the contract here raised questions of fact as to whether the defendant's control...