Opinion
October 7, 1992
Appeal from the Supreme Court, Erie County, Mintz, J.
Present — Denman, P.J., Boomer, Balio, Lawton and Fallon, JJ.
Order and judgment unanimously affirmed without costs. Memorandum: Supreme Court properly granted defendant summary judgment dismissing plaintiff's complaint. Plaintiff was injured on January 19, 1986, while skiing at the defendant's ski area. The complaint alleges that plaintiff's injuries resulted from improper adjustment of the bindings on the ski equipment he rented while at defendant's premises. Defendant demonstrated entitlement to judgment as a matter of law by tender of evidentiary proof in admissible form establishing that, on the date alleged in the complaint, all phases of ski equipment rental, including the adjustment of ski bindings, were performed exclusively by Slippery Slats and All That, Inc. (Slippery Slats), a separate and distinct corporation over which it exercised no control. In response to defendant's motion, plaintiff failed to demonstrate by admissible evidence the existence of a factual issue requiring trial nor did he tender an acceptable excuse for his failure to do so (see, Zuckerman v City of New York, 49 N.Y.2d 557, 560). The determination whether one is an independent contractor typically involves a question of fact concerning which party controls the methods and means by which the work is to be done (see, Matter of Rivera [State Line Delivery Serv. — Roberts], 69 N.Y.2d 679, 682, rearg dismissed 69 N.Y.2d 823, rearg denied 69 N.Y.2d 946, cert denied 481 U.S. 1049; see also, 3 N.Y. Jur 2d, Agency, § 325; Matter of Morton, 284 N.Y. 167, 172). Where, as here, the proof on the issue of control presents no conflict in evidence, the matter may properly be determined by the court as a matter of law (see, Matter of Beach v Velzy, 238 N.Y. 100). Because plaintiff's submissions failed to controvert defendant's proof that it lacked control over Slippery Slats, Supreme Court properly granted defendant's motion (see, DeFeo v Frank Lambie, Inc., 146 A.D.2d 521; cf., Pannone v Burke, 149 A.D.2d 673, lv denied 74 N.Y.2d 610).