Opinion
December 23, 1965
Defendant appeals from an order denying summary judgment in a negligence case upon the grounds that the plaintiff's remedy is pursuant to the Workmen's Compensation Law. It may be that upon a plenary trial the facts will establish that the provisions of the Workmen's Compensation Law are controlling and the sole remedy. We are unable on this present record to so find as a matter of law. There remains open, besides the queries mentioned by the Special Term, such questions as what the decedent was doing on the premises in Brooklyn at the time of his death; whether he had temporarily abandoned his employment at that time and whether he was engaged in some work of his own, or possibly for one of the defendant trucking companies. Special Term found that on the present facts there was no basis for an independent contractor relationship. This does not foreclose a further development of such relationship on the trial if such evidence is forthcoming. The defendant driver Stanley Smith might have resolved the problem but on this motion there is no affidavit or other evidence by him. Order affirmed, with $25 costs. Gibson, P.J., Taylor, Aulisi and Hamm, JJ., concur.