Opinion
2021-03684
06-11-2021
MARY P. RAYMOND, PLAINTIFF-APPELLANT, v. JON HILLEBERT, ET AL., DEFENDANTS, HOME DELIVERY LINK, INC. AND HOME DELIVERY, INC., DEFENDANTS-RESPONDENTS.
WILLIAM MATTAR, P.C., ROCHESTER (MATTHEW J. KAISER OF COUNSEL), FOR PLAINTIFF-APPELLANT. GOLDBERG SEGALLA, LLP, BUFFALO (PAUL D. MCCORMICK OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
WILLIAM MATTAR, P.C., ROCHESTER (MATTHEW J. KAISER OF COUNSEL), FOR PLAINTIFF-APPELLANT.
GOLDBERG SEGALLA, LLP, BUFFALO (PAUL D. MCCORMICK OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
PRESENT: PERADOTTO, J.P., CARNI, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
Appeal from an order of the Supreme Court, Erie County (Timothy J. Walker, A.J.), entered April 20, 2020. The order granted the motion of defendants Home Delivery, Inc. and Home Delivery Link, Inc. for summary judgment dismissing plaintiff's complaint against them.
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying the motion in part and reinstating the complaint against defendant Home Delivery Link, Inc., and as modified the order is affirmed without costs.
Memorandum: Plaintiff commenced this action to recover damages for injuries that she sustained when the motor vehicle in which she was traveling collided with a delivery truck. Supreme Court granted the motion of Home Delivery Link, Inc. (defendant) and defendant Home Delivery, Inc. (Wisconsin entity) for summary judgment dismissing the complaint against them, and plaintiff appeals. Initially, plaintiff does not contend in her brief that the court erred in granting the motion with respect to the Wisconsin entity, and therefore we deem any challenge to that part of the order abandoned (see generally Ciesinski v Town of Aurora, 202 A.D.2d 984, 984 [4th Dept 1994]). We agree with plaintiff that the court erred in granting the motion with respect to defendant because defendant failed to establish as a matter of law that the operator of the delivery truck was an independent contractor, not an employee. Therefore, we modify the order accordingly.
An entity that retains an independent contractor generally is not liable for the independent contractor's negligent acts (see Kleeman v Rheingold, 81 N.Y.2d 270, 273-274 [1993]; Tschetter v Sam Longs' Landscaping, Inc., 156 A.D.3d 1346, 1347 [4th Dept 2017]). Whether a relationship between a delivery company and its drivers" 'is that of employees or independent contractors involves a question of fact as to whether there is evidence of either control over the results produced or over the means used to achieve the results'" (Carlson v American Intl. Group, Inc., 30 N.Y.3d 288, 301 [2017], quoting Matter of Rivera [State Line Delivery Serv.-Roberts], 69 N.Y.2d 679, 682 [1986], rearg dismissed 69 N.Y.2d 823 [1987], rearg denied 69 N.Y.2d 946 [1987], cert denied 481 U.S. 1049 [1987]). Here, defendant's own evidentiary submissions established that defendant rented the delivery truck that was involved in the accident, was empowered to install its own signage on the truck, designed the delivery routes, set the times for the deliveries, and required drivers to submit incident reports following any accidents, thereby raising a question of fact with respect to the nature of the employment relationship (see Carlson, 30 N.Y.3d at 300-301; Edwards v Rosario, 166 A.D.3d 453, 454 [1st Dept 2018]; Christ v Ongori, 82 A.D.3d 1031, 1032 [2d Dept 2011]; Anikushina v Moodie, 58 A.D.3d 501, 501-502 [1st Dept 2009], lv denied 12 N.Y.3d 905 [2009]).