Wecker v. Crossland Grp., Inc.

• Decision Date: 21 February 2012
• Citation: 2012 N.Y. Slip Op. 01455,939 N.Y.S.2d 481,92 A.D.3d 870
• Parties: Kenneth WECKER, respondent, v. CROSSLAND GROUP, INC., appellant, et al., defendants.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 01455

92 A.D.3d 870

939 N.Y.S.2d 481

Kenneth WECKER, respondent,

v.CROSSLAND GROUP, INC., appellant, et al., defendants.

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

Feb. 21, 2012.

Rodney Drake, Bohemia, N.Y., for appellant.

Joseph M. Palmiotto, New York, N.Y., for respondent.

PETER B. SKELOS, J.P., JOHN M. LEVENTHAL, PLUMMER E. LOTT, and ROBERT J. MILLER, JJ.

In an action, inter alia, to recover damages for personal injuries and conversion, the defendant Crossland Group, Inc., appeals from an order of the Supreme Court, Kings County (Kramer, J.), dated July 14, 2011, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying those branches of the motion of the defendant Crossland Group, Inc., which were for summary judgment dismissing the first, third, and fourth causes of action insofar as asserted against it, and substituting therefor a provision granting those branches of the motion; as so modified, the order is affirmed, with costs payable by the plaintiff to the defendant Crossland Group, Inc.

The defendant Crossland Group, Inc. (hereinafter Crossland), was hired by the defendant HSBC Auto Finance, Inc. (hereinafter HSBC), to effectuate repossession of an automobile in which HSBC owned a security interest. Crossland, in turn, hired the defendant Gadid Towing and Recovery, Inc. (hereinafter Gadid), to physically repossess the vehicle, and deliver it to Crossland. The plaintiff, the owner of the vehicle, commenced this action, inter alia, to recover damages for personal injuries he allegedly sustained during the repossession of the vehicle, and for conversion. Crossland moved for summary judgment dismissing the complaint insofar as asserted against it, and the Supreme Court denied the motion.

“Ordinarily, a principal is not liable for the acts of independent contractors in that, unlike the master-servant relationship, principals cannot control the manner in which the independent contractors' work is performed” ( Chainani v. Board of Educ. of City of N.Y., 87 N.Y.2d 370, 380–381, 639 N.Y.S.2d 971, 663 N.E.2d 283; see Kleeman v. Rheingold, 81 N.Y.2d 270, 273–274, 598 N.Y.S.2d 149, 614 N.E.2d 712). “The determination of whether one is an employee or an independent contractor requires examination of all aspects of the arrangement between the parties, although ‘the critical inquiry ... pertains to the degree of control exercised by the purported employer over the results produced or the means used to achieve the results' ” ( Araneo v. Town Bd. for Town of Clarkstown, 55 A.D.3d 516, 518–519, 865 N.Y.S.2d 281 [citation omitted], quoting Bynog v. Cipriani Group, 1 N.Y.3d 193, 198, 770 N.Y.S.2d 692, 802 N.E.2d 1090).

Here, Crossland demonstrated its prima facie entitlement to judgment as a matter of law dismissing the first, third, and fourth causes of action insofar as asserted against it, which were predicated upon the conduct of Gadid or Gadid's employee. In support of the motion, Crossland submitted, inter alia, an “Independent Contractor Agreement” between it and Gadid, which, among other things, indicated that Gadid would invoice Crossland weekly, would not deduct or withhold any taxes or FICA, and would not be entitled to any benefits. Crossland also submitted the affidavit of its vice president, averring that Crossland did not control the manner in which Gadid carried out the repossession, which Gadid accomplished using its own vehicles and employees. Based upon these submissions, Crossland established, prima facie, that Gadid was...