You are here: / / IF DEFENDANT DRIVER, COCUZZO, WAS AN EMPLOYEE OF DEFENDANT RANDALL AT THE...
, ,

IF DEFENDANT DRIVER, COCUZZO, WAS AN EMPLOYEE OF DEFENDANT RANDALL AT THE TIME OF THE ACCIDENT, RANDALL WOULD BE VICARIOUSLY LIABLE; NOT SO IF COCUZZO WAS AN INDEPENDENT CONTRACTOR; THE “EMPLOYER VS INDEPENDENT CONTRACTOR” ISSUE MUST BE RESOLVED BY THE TRIER OF FACT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined whether defendant Randall Provisions, Inc. was vicariously liable for defendant Cocuzzo’ s traffic accident depended on a question of fact, i.e., whether Cocuzzo was an employee or an independent contractor. Therefore Randall’s motion for summary judgment should not have been granted:

Randall submitted, inter alia, transcripts of the deposition testimony of Cucuzzo and the deposition testimony of Gregory L. Randall, its principal. Cucuzzo and Gregory both testified that Randall paid Cucuzzo in cash, issued him a 1099 tax form at the end of the year, and did not provide him with any fringe benefits, as well as that Cucuzzo used his own vehicle to travel his merchandising route. These facts all weigh in favor of the conclusion that Cucuzzo was an independent contractor … . However, Randall’s submissions also included evidence indicating the existence of an employer-employee relationship. For example, Cucuzzo testified that Gregory gave him three Pepsi-branded t-shirts to wear while working for Randall … , and that Randall provided him with a daily stipend to reimburse him for gas mileage on top of his regular pay … . Cucuzzo also testified that, when he first began working for Randall, he received approximately two days of training from a Randall worker as to the company’s “way of doing” the merchandising work … . According to Cucuzzo, he regularly checked in with a Randall delivery driver to coordinate their respective work obligations and to ensure that Cucuzzo only reported to a store after the driver had delivered products … . Although his work days fluctuated from week to week, Cucuzzo and Gregory both testified that Gregory would provide Cucuzzo with his work schedule in advance … , as well as determine the list of stores that Cucuzzo was required to visit … . Gaudreau v Cucuzzo, 2025 NY Slip Op 03046, Second Dept 5-21-25

Practice Point: Here there was evidence the driver involved in the accident was an employee and there was evidence he was an independent contractor. If the driver was an employee, his employer would be vicariously liable, not so if the driver was an independent contractor. The issue must be resolved by the trier of fact.

 

You might also like
IN THESE MARITIME LAW ACTIONS STEMMING FROM A FATAL BOATING ACCIDENT, THE TOWN DID NOT DEMONSTRATE ITS ENTITLEMENT TO SUMMARY JUDGMENT, THE COMPLAINTS ALLEGED NEGLIGENT PLACEMENT OF BUOYS (SECOND DEPT).
THE “TIME WHEN” THE ALLEGED SEXUAL ABUSE TOOK PLACE IN 1997 WAS ADEQUATELY ALLEGED IN THE CLAIM IN THIS CHILD VICTIMS ACT SUIT (SECOND DEPT).
THE USE OF POST-DISCHARGE AFFIDAVITS FROM TWO JURORS, CLAIMING JUROR CONFUSION, AS THE BASIS FOR THE MOTION TO SET ASIDE THE VERDICT WAS IMPROPER BECAUSE THERE WAS NO SUPPORT FOR THE CLAIMS IN THE RECORD; THE MOTION SHOULD HAVE BEEN DENIED (SECOND DEPT).
There Must Be a Determination of Paternity Before Making an Abandonment Finding
Plaintiff Unable to Identify Cause of Fall
THE LABOR-LAW CONSTRUCTION-ACCIDENT ACTION WAS PRECLUDED BY THE RESULT OF THE PRIOR WORKERS’ COMPENSATION HEARING UNDER THE DOCTRINE OF COLLATERAL ESTOPPEL; THE MOTION TO AMEND THE ANSWER TO ADD THE COLLATERAL ESTOPPEL DEFENSE WAS PROPERLY GRANTED, EVEN THOUGH THE MOTION WAS MADE AFTER THE NOTE OF ISSUE WAS FILED (SECOND DEPT).
FATHER’S PETITION FOR CUSTODY SHOULD NOT HAVE BEEN DISMISSED BECAUSE HIS PATERNITY HAD NOT BEEN ADJUDICATED AT THE TIME THE PETITION WAS BROUGHT; THE PETITION ADEQUATELY ALLEGED PATERNITY WHICH WAS SUBSEQUENTLY CONFIRMED BY A DNA TEST (SECOND DEPT).
INFANT PLAINTIFF WAS A PASSENGER ON DEFENDANTS’ ALL TERRAIN VEHICLE (ATV), DRIVEN BY DEFENDANTS’ DECEDENT, WHO WAS INTOXICATED, WHEN THE ATV CRASHED INTO A TREE; THE NEGLIGENT SUPERVISION CAUSE OF ACTION PROPERLY SURVIVED SUMMARY JUDGMENT; THERE IS NO COMMON LAW “NEGLIGENT PROVISION OF ALCOHOL TO A MINOR” CAUSE OF ACTION IN NEW YORK; SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED ON THE NEGLIGENCE CAUSE OF ACTION BASED ON THE VIOLATION OF THE VEHICLE AND TRAFFIC LAW; CAUSES OF ACTION FIRST ADDRESSED IN PLAINITIFFS’ REPLY PAPERS PROPERLY DISMISSED (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

THE BANK’S UNILATERAL ATTEMPT TO REVOKE THE ACCELERATION OF THE DEBT IS... HERE MOTHER’S CONCLUSORY AFFIDAVIT CLAIMING SHE WAS NOT SERVED WITH THE...