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Questions of Fact Raised Re: Whether Plaintiff’s Decedent’s Brother and Plaintiff’s Decedent Were Employees of the Defendants (Who Then May Be Liable Under the Doctrine of Respondeat Superior) or Independent Contractors

The Second Department determined a question of fact had been raised about whether the brother of plaintiff's decedent was defendants' employee or an independent contractor.  Defendants are the owners of a single family home who hired plaintiff's decedent's brother and plaintiff's decedent to cut down a tree on the property. Plaintiff's decedent was killed when he was thrown head-first into a tree during the tree-felling process. Plaintiff's decedent sued defendants under negligence, violation of Labor Law sections 200 and 240, and wrongful death theories.  Plaintiff's decedent sought to hold defendants liable under the doctrine of respondeat superior (as the employer of decedent's brother, who negligently performed his work, causing plaintiff's decedent's death). Plaintiff's decedent and his brother were hired by the defendants at the suggestion of a mason, Cano, who worked for the defendants.  Cano relayed defendants' instructions concerning the tree removal to plaintiff's decedent's brother:

“The general rule is that an employer who hires an independent contractor is not liable for the independent contractor's negligent acts” … . “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” … . Whether a party is an independent contractor or an employee is usually a factual issue for a jury … .

The defendants failed to establish their prima facie entitlement to judgment as a matter of law, since the evidence they submitted in support of their motion did not demonstrate the absence of any triable issues of fact … . In support of their motion, the defendants submitted the deposition transcript of the decedent's brother, who testified that the defendant Sean Jencik, in addition to specifying which trees were to be removed, provided instructions as to how the work was to be performed so that the trees would not fall on to the roadway, which were conveyed to him in Spanish through Cano. Moreover, the decedent's brother testified that the defendants gave the money to pay him and the other workers involved with the tree removal to Cano, who then paid them. Sirignano v Jencik, 2014 NY Slip Op 08977, 2nd Dept 12-24-14

 

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