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THERE IS A QUESTION OF FACT WHETHER THE DRIVER WHO ALLEGEDLY INJURED PLAINTIFF WAS AN EMPLOYEE OR A SUBCONTRACTOR WITH RESPECT TO ONE OF THE THREE DEFENDANTS, THE OTHER TWO DEFENDANTS DEMONSTRATED THE DRIVER WAS NOT AN EMPLOYEE ENTITLING THEM TO SUMMARY JUDGMENT (SECOND DEPT). ​

The Second Department, modifying Supreme Court, determined the summary judgment motions brought by two of the defendants in this traffic accident case should have been granted. There was a question of fact whether the driver (Koureichi) who allegedly injured the plaintiff was an employee or a subcontractor of defendant Hudson. But the other two defendants, Stop & Shop and Subcontracting Concepts (SCI), demonstrated Koureichi was not an employee:

As a general rule, an employer who hires an independent contractor, as distinguished from an employee or servant, is not liable for the negligent acts of the independent contractor … . Control of the method and means by which the work is to be done is the critical factor in determining whether one is an independent contractor or an employee for purposes of tort liability … . Factors relevant to assessing control include whether a worker (1) worked at [her or] 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 … .

Contrary to Hudson's contention, the evidence it submitted in support of its motion, including, inter alia, a transcript of Koureichi's deposition testimony, did not eliminate all triable issues of fact as to whether Koureichi was an independent contractor when the accident occurred … . Among other things, the evidence submitted by Hudson indicated that Koureichi worked for Hudson six days per week, from 10:00 a.m. to 7:00 p.m., that he was required to call a supervisor employed by Hudson if he could not report to work, that he wore a t-shirt provided by Hudson, for which he paid Hudson, which had “Same-Day Delivery” printed on it, and that he had a two-way radio provided by Hudson, for which Koureichi also paid Hudson. In light of Hudson's failure to establish its prima facie entitlement to judgment as a matter of law, we agree with the Supreme Court's denial of Hudson's motion for summary judgment dismissing the complaint insofar as asserted against it, without regard to the sufficiency of the plaintiffs' opposition papers … .

However, the Supreme Court should have granted Stop & Shop's motion for summary judgment dismissing the complaint insofar as asserted against it. The evidence submitted by Stop & Shop established, prima facie, its entitlement to judgment as a matter of law. That evidence included Koureichi's deposition testimony that he did not know the names of any of Stop & Shop's managers, that he had no contact with them, and that Stop & Shop's managers did not control the hours that he worked or how he made deliveries. That evidence established, prima facie, that Stop & Shop did not control the means and method of Koureichi's work. In opposition, the plaintiffs failed to raise a triable issue of fact.

The Supreme Court also erred in denying SCI's motion for summary judgment dismissing the complaint insofar as asserted against it. The evidence submitted by SCI, including Koureichi's deposition testimony that he did not have any contact with anyone at SCI, and that he didn't know SCI's function, other than to issue his paychecks, established that SCI did not control the means and method of Koureichi's work, and therefore, established SCI's prima facie entitlement to judgment as a matter of law. In opposition, the plaintiffs failed to raise a triable issue of fact. Nachman v Koureichi, 2018 NY Slip Op 06752, Second Dept 10-10-18

NEGLIGENCE (EMPLOYMENT LAW, TRAFFIC ACCIDENTS, THERE IS A QUESTION OF FACT WHETHER THE DRIVER WHO ALLEGEDLY INJURED PLAINTIFF WAS AN EMPLOYEE OR A SUBCONTRACTOR WITH RESPECT TO ONE OF THE THREE DEFENDANTS, THE OTHER TWO DEFENDANTS DEMONSTRATED THE DRIVER WAS NOT AN EMPLOYEE ENTITLING THEM TO SUMMARY JUDGMENT (SECOND DEPT))/EMPLOYMENT LAW (NEGLIGENCE, TRAFFIC ACCIDENTS, THERE IS A QUESTION OF FACT WHETHER THE DRIVER WHO ALLEGEDLY INJURED PLAINTIFF WAS AN EMPLOYEE OR A SUBCONTRACTOR WITH RESPECT TO ONE OF THE THREE DEFENDANTS, THE OTHER TWO DEFENDANTS DEMONSTRATED THE DRIVER WAS NOT AN EMPLOYEE ENTITLING THEM TO SUMMARY JUDGMENT (SECOND DEPT))/TRAFFIC ACCIDENTS (NEGLIGENCE, EMPLOYMENT LAW, THERE IS A QUESTION OF FACT WHETHER THE DRIVER WHO ALLEGEDLY INJURED PLAINTIFF WAS AN EMPLOYEE OR A SUBCONTRACTOR WITH RESPECT TO ONE OF THE THREE DEFENDANTS, THE OTHER TWO DEFENDANTS DEMONSTRATED THE DRIVER WAS NOT AN EMPLOYEE ENTITLING THEM TO SUMMARY JUDGMENT (SECOND DEPT))/SUBCONTRACTORS (NEGLIGENCE, THERE IS A QUESTION OF FACT WHETHER THE DRIVER WHO ALLEGEDLY INJURED PLAINTIFF WAS AN EMPLOYEE OR A SUBCONTRACTOR WITH RESPECT TO ONE OF THE THREE DEFENDANTS, THE OTHER TWO DEFENDANTS DEMONSTRATED THE DRIVER WAS NOT AN EMPLOYEE ENTITLING THEM TO SUMMARY JUDGMENT (SECOND DEPT))

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