Opinion
Index No. 50348/19
03-24-2021
MICHAEL WOOD and MARILYN WOOD, Plaintiffs, v. FACTORY DIRECT OF POUGHKEEPSIE, LLC, FACTORY DIRECT ENTERPRISES, LLC, FGO DELIVERS, LLC d/b/a FGO LOGISTICS and ASHLEY FURNITURE INDUSTRIES, INC., Defendants.
Unpublished Opinion
DECISION AND ORDER
MARIA G. ROSA, J.S.C.
The following papers were read on Defendants' motion for summary judgment.
NOTICE OF MOTION AFFIRMATION IN SUPPORT EXHIBITS A -1
MEMORANDUM OF LAW IN SUPPORT
AFFIRMATION IN OPPOSITION
AFFIRMATION IN REPLY
This is a negligence action in which Plaintiffs seek damages for injuries Plaintiff Michael Wood ("Plaintiff) allegedly sustained when the right side of a new reclining chair he had just purchased came apart while he was sitting on it. Defendants Factory Direct of Poughkeepsie, LLC and Factory Direct Enterprises, LLC ("Factory Direct") move for summary judgment dismissing the complaint and all cross-claims.
The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law. Alvarez v. Prospect Hospital. 68 N.Y.2d 320, 324 (1986). If a movant has met this threshold burden, to defeat the motion the opposing party must present the existence of a triable issue of fact. See Zuckerman v. New York. 49 N.Y.2d 557, 562 (1980). In deciding a motion for summary judgment, "the trial court must afford the party opposing the motion every inference which may be properly drawn from the facts presented, and the facts must be considered favorable to the nonmovant." Szczerbiak v. Pilat. 90 N.Y.2d 553 (1997).
Defendants have submitted copies of the pleadings, deposition transcripts and a Delivery Services Agreement entered into in 2016 by Factory Direct Enterprises, LLC and Defendant FGO Delivers, LLC ("FGO"). The foregoing establishes that Plaintiffs purchased a recliner at an Ashley Furniture store in Poughkeepsie, New York owned by Factory Direct. At the time of purchase store employees advised Plaintiffs that they would be contacted about delivery of the chair. On May 23, 2017, two employees of FGO Delivers, LLC delivered and assembled the recliner. Plaintiff testified at his deposition that at approximately 7:00 p.m. that evening he went to sleep in the chair. At 5:00 a.m. he attempted to recline the chair all the way and the back came off, causing him to fall to the floor. He stated that the right side of the chair looked as if it became disconnected. A non-party furniture repairman hired to fix the chair testified at his deposition that the chair came apart because a lock latch on a bracket had not been properly secured during assembly. He testified that he repaired the chair in Plaintiffs' home by pushing down the latch to secure it.
Defendants' motion for summary judgment is premised on a claim that there is no evidence that they were negligent in connection with the chair coming apart. Defendants assert that they merely sold Plaintiffs the chair and made arrangements for its delivery, but had no part in its actual delivery or assembly. Defendants maintains that FGO was the sole entity responsible for assembling the chair and that it operated as an independent contractor.
An employer who hires an independent contractor, as distinguished from an employee, is not liable for the negligent acts of the independent contractor. Nachman v. Koureichi, 165 A.D.3d 818 (2nd Dept 2018). Determining whether a party was an independent contractor or an employee turns on the degree of control exercised over the manner and methods by which the work is to be performed. Id- Factor relevant to making this determination include whether a worker: (1) worked at 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. Id. at 819-20. Other relevant factors are whether the employee is engaged in a distinct occupation or business, whether the employer or the employee supplies the instrumentalities of the work, and the intent/belief of the parties. See Capak v. Epps. 2020 WL 3073210 (SDNY June 10, 2020).
Under the Delivery Services Agreement, FGO contracted to provide delivery services for Factory Direct's retail merchandise in accordance with specified terms. FGO agreed to provide all personnel, materials, equipment, vehicles, tools and supplies necessary to make the deliveries. It agreed that it would train all drivers and helpers, and that such training would include familiarizing them with "Ashley new driver orientation" standards. The agreement provided that FGO was responsible for determining the quality of merchandise before delivery. FGO agreed to deliver and assemble the furniture Factory Direct provided to it for delivery. It further agreed to performance standards, conditions for the size, appearance and age of delivery vehicles and that its employees would abide by a specified code of conduct while making deliveries for Factory Direct. The agreement expressly stated that FGO was performing as an independent contractor and that the contract would not be construed to create an agency or employer/employee relationship. FGO represented that it engaged in similar business for other clients and agreed to indemnify Factory Direct for any loss, theft, destruction or damage to Factory Direct's furniture while in FGO's custody.
An Assistant Customer Care Manager of Factory Direct testified at her deposition that Factory Direct does business as Ashley Furniture HomeStore and has a store location in Poughkeepsie. She stated that after a purchase, Factory Direct's general practice was to obtain the furniture from a warehouse and bring it to a staging area where independent delivery companies, known in the industry as "drive teams," would then deliver the furniture. While Factory Direct would arrange for and confirm the delivery, it was not responsible for the actual delivery of the furniture. A manager for FGO testified at his deposition that FGO does deliveries for multiple business. He acknowledged that Factory Direct was a major customer and that an FGO employee was stationed in a Factory Direct building in Edison, New Jersey from which FGO delivered Factory Direct furniture. He explained that Factory Direct would prepare manifests for FGO drivers that showed the deliveries the drivers were responsible for each day. FGO drivers were then responsible for inspecting the furniture, loading it onto FGO vehicles, delivering and assembling it. FGO and Factory Direct were in communication about deliveries should any issues arise. He stated that FGO was not the only company that did deliveries for Factory Direct. He further noted that an FGO driver could reject a piece of furniture for delivery upon inspection if it was damaged.
The foregoing is sufficient to demonstrate Factory Direct's prima facie entitlement to summary judgment. Plaintiffs' theory of negligence is that the reclining chair was not assembled correctly. Factory Direct has established through competent evidence that FGO was responsible for assembling the chair upon delivery and that it was operating as an independent contractor. While the two entities coordinated their businesses to facilitate the delivery of Factory Direct furniture, Factory Direct did not control the method and means by which FGO made its deliveries. The undisputed evidence is that FGO did deliveries for other entities and none of its employees was paid directly by Factory Direct. Pursuant to the Delivery Services Agreement, FGO supplied the instrumentalities of its work and the parties agreed that FGO was operating as an independent contractor. Accordingly, Factory Direct has demonstrated its prima facie entitlement to summary judgment.
In opposition, Plaintiffs fail to raise a material issue of fact. The only opposition submitted is an affirmation of counsel, which is of no probative value as it is not based on first-hand knowledge of the facts asserted therein. The mere fact that FGO delivery trucks were required by the Delivery Services Agreement to have "Ashley Furniture" written on them, and that its drivers agreed to abide by a code of conduct and wear specified clothing, did not serve to make FGO an agent of Factory Direct. These are merely contractual requirements that FGO agreed to abide by in performing services under the contract. There is insufficient evidence in the record demonstrating that Factory Direct controlled the methods or means by which FGO made deliveries, which was the sole function of FGO's business. That Factory Direct and FGO closely coordinated their activities for a mutual purpose did not serve to make FGO an agent of Factory Direct. They are separate entities and Factory Direct may not be held liable for the negligence of FGO. Wherefore, it is
ORDERED, that the motion of Defendants Factory Direct of Poughkeepsie, LLC and Factory Direct Enterprises, LLC for summary judgment dismissing Plaintiffs' claims and cross-claims is granted. The caption of this action is hereby amended accordingly to remove these entities as named defendants. Based upon this court granting the unopposed motion for summary judgment made by Defendant Ashley Furniture Industries, the caption shall also be amended to remove that entity as a defendant.
The foregoing constitutes the decision and order of the Court. A pre-trial conference will be held virtually via Microsoft Teams on May 17, 2021 at 10:00 a.m.