| Anikushina v Moodie |
| 2009 NY Slip Op 00239 [58 AD3d 501] |
| January 20, 2009 |
| Appellate Division, First Department |
| Natalia Anikushina, Appellant, v Courtney D. Moodie,Defendant, and Consolidated Delivery Logistics, Inc., et al.,Respondents. |
—[*1] Barry, McTiernan & Moore, New York (Laurel A. Wedinger of counsel), forrespondents.
Order, Supreme Court, New York County (Deborah Kaplan, J.), entered August 7, 2007,which granted the corporate defendants' motion for summary judgment dismissing the complaintas against them, denied, as moot, their motion to strike plaintiff's notice to admit, and deniedplaintiff's cross motion for leave to renew her motion to strike certain portions of defendants'answer to her second amended complaint, modified, on the law, to deny the motion for summaryjudgment and remand for determination of defendants' motion to strike, and otherwise affirmed,without costs.
The evidence presents a triable issue whether the corporate defendants exercised sufficientcontrol over defendant Moodie's work to potentially render them liable for injuries plaintiffsuffered when she was struck by a delivery van driven by Moodie (see Carrion v OrbitMessenger, 82 NY2d 742 [1993]). Moodie performed delivery services only for OlympicCourier Systems, Inc., a subsidiary of CD&L Inc., during the years in which he worked forCD&L pursuant to an independent contractor's agreement with Olympic; he used CD&L forms;he made deliveries and pickups at times specified by CD&L; his whereabouts were tracked byCD&L by means of a prepared schedule and regular contact through a CD&L computer andCD&L dispatchers; he was paid 57% of the gross billing receipts for work performed; he wasobligated to procure insurance in an amount dictated by the independent contractor's agreement;he always wore a shirt bearing defendants' logo (see id.; Devlin v City of NewYork, 254 AD2d 16 [1998]).
The court correctly denied plaintiff's cross motion to renew her motion to strike, since theevidence she submitted, even if new, was not addressed to the issues raised either in her originalmotion or in defendants' motion for summary judgment. Concur—Lippman, P.J., Acostaand Renwick, JJ.
Catterson, J., dissents in a memorandum as follows:[*2]Because I believe that the evidence in this case clearly demonstrates that the corporatedefendants lacked the requisite degree of control necessary to an employer-employeerelationship with the defendant driver and therefore, are not vicariously liable, I mustrespectfully dissent.
This action results from an automobile accident which occurred on August 1, 2003. Theplaintiff alleges that a van driven by the defendant Courtney D. Moodie struck her as she wasattempting to cross the street. At the time of the accident, Moodie was delivering packages fordefendant Olympic Courier Systems, Inc., the subsidiary of defendant CD&L Inc. (CDL).
In October 2003, the plaintiff commenced a personal injury action against Moodie.Subsequently, the plaintiff added the corporate defendants as parties, alleging that they werevicariously liable for Moodie's negligence.[FN1]On or about January 29, 2007, the corporate defendants moved for summary judgment on thegrounds that Moodie was not an employee of any of the corporate defendants, but rather, anindependent contractor who provided delivery services to the defendants. Therefore, they couldnot be held vicariously liable for his negligence.
In support of their motion, the corporate defendants relied on the "Independent ContractorAgreement" between Moodie and Olympic, as well as Moodie's payroll history and Form 1099s,and the EBT testimony of both Moodie and Curtis Hight, Olympic's Region Manager.[FN2]The agreement provided, inter alia, that Moodie was free to decide his own route for deliveries;could maintain a flexible work schedule for his business; was free to work for other companies;and could accept or reject the corporate defendants' regularly scheduled deliveries.
Moodie testified that he owned his own delivery van,[FN3]and paid for the vehicle's registration, insurance, gas and upkeep. He described his work for CDLas "flexible." His weekly pay from CDL was based on commission, and it was variabledepending on the number of deliveries and time worked. Moodie was required to file a W-4 formwith CDL's payroll department and he identified Form 1099s from Olympic for the years 2000through 2003.
Hight testified that Moodie was not an employee of either Olympic or CDL, that he neverreceived employee-related benefits, that he was not treated as an employee for tax purposes, that[*3]Moodie paid his own work costs, and that he performeddelivery services pursuant to an independent contractor's agreement.
By order entered August 7, 2007, the court granted the corporate defendants' motion forsummary judgment dismissing the action as against them upon finding that Moodie was anindependent contractor rather than an employee.
On appeal, the plaintiff asserts that the motion court had no basis to rule that an independentcontractor relationship existed between the corporate defendants and Moodie. She asserts thatCDL controlled both the results of Moodie's work and the means used to achieve the results.Specifically, the plaintiff argues that CDL/Olympic dictated, assigned and coordinated deliveriesthrough its computer program and dispatchers. The plaintiff also asserts that other evidence inthe record demonstrates that CDL had control over Moodie, including, inter alia, that Moodiehad to wear a CDL uniform, compile and timely submit completed delivery receipts, deliverpackages by a certain time to recurrent customers, and leave undelivered packages at CDLwarehouses. At the very least, the plaintiff argues there exists a material issue of fact as to thestatus of Moodie's work relationship with CDL/Olympic. For the reasons set forth below, Idisagree.
As a general rule, a principal is not liable for the acts of an independent contractor becauseprincipals ordinarily do not control the manner in which independent contractors perform theirwork. (Chainani v Board of Educ. of City of N.Y., 87 NY2d 370, 380-381 [1995].)Control of the method and means by which work is to be performed, therefore, is a critical factorin determining whether a party is an independent contractor or an employee for the purposes oftort liability. (Harjes v Parisio, 1AD3d 680, 680-681 [2003], lv denied 1 NY3d 508 [2004].) While such adetermination typically involves a question of fact, in those instances where the evidence on theissue of control presents no conflict, the matter may properly be determined by the court as amatter of law. (Lazo v Mak's Trading Co., 199 AD2d 165, 166 [1st Dept 1993],affd 84 NY2d 896 [1994].) I believe that this presents just such a case.
Recently, the Court of Appeals has reaffirmed that "the critical inquiry in determiningwhether an employment relationship exists pertains to the degree of control exercised by thepurported employer." (Bynog v CiprianiGroup, 1 NY3d 193, 198 [2003].) The factors relevant to assessing control includewhether the worker (1) works at his own convenience, (2) is free to engage in other employment,(3) receives fringe benefits, (4) is on the employer's payroll and (5) is on a fixed schedule.(Id. at 198.) Moreover, "incidental control over the results produced without furtherindicia of control over the means employed to achieve the results will not constitute substantialevidence of an employer-employee relationship." (Matter of Ted Is Back Corp.[Roberts], 64 NY2d 725, 726 [1984].)
In the instant case, there is overwhelming evidence that Moodie was an independentcontractor. The following facts are undisputed: Moodie owned his own vehicle; he paid all thecosts associated with his vehicle; he was free to make his own hours; he could work for others;his contract was not exclusive to Olympic; he could accept or decline jobs as he decided; notaxes were withheld from his pay; no Social Security was withheld from his pay; he was notrequired to put a CDL mark on his vehicle; he could hire his own employees to assist him; hehad to pay for the phone he used; he received no fringe benefits from the corporate defendant;and he [*4]was not provided workers' compensation by any of thecorporate defendants. Furthermore, there is no evidence that Moodie was required to wear a shirtwith the CDL logo. Indeed, it is undisputed that Moodie only wore a CDL shirt because hereceived a bonus for wearing it. Moreover, Moodie testified that he wore the CDL-logo shirt toassist CDL's customers in identifying him so that he could gain quick access to deliverylocations. He also testified that the route he took between his delivery location in New York Cityand his delivery location on Long Island was not dictated by Olympic, but rather, given thetraffic conditions on Long Island, it was the only sensible route to take.
Contrary to the plaintiff's contention, the fact that Moodie called a company dispatcher, thathe received text messages to obtain information as to pickups and deliveries, or that he wasasked to make a delivery to Uniondale by a specific time are all insufficient to raise a triableissue of fact with respect to the employment status. (See DeFeo v Frank Lambie, Inc.,146 AD2d 521 [1st Dept 1989] [where manufacturer was entitled to summary judgment sincethere was no evidence to support claim that delivery company was agent of manufacturer, ratherthan independent contractor, notwithstanding fact that district manager of manufactureroccasionally instructed delivery company as to whether shipped goods were to be delivered, andas to how they should be segregated according to type]; see also Irrutia v Terrero, 227AD2d 380 [2d Dept 1996] [noting that while car service corporation did provide dispatches forthe drivers who agreed to certain rules and standards, such rules merely related to incidentalcontrol and the exercise of general supervisory power].)
Equally without merit is the plaintiff's contention that Bermudez v Ruiz (185 AD2d212 [1st Dept 1992]) requires reversal. In Bermudez, this Court found that the motioncourt erred in making a determination that, as a matter of law, an operator of a delivery truck wasan independent contractor and not an agent of a furniture company. In reaching that conclusion,we relied upon the fact that there was no evidence of an independent contractor agreementbetween the driver and the company. In this case, however, it is undisputed that Moodie and thecorporate defendants had just such an agreement. The plaintiff's position that a signed,authenticated agreement attested to by all the parties has no probative value, is simply untenable.(See Gfeller v Russo, 45 AD3d1301 [4th Dept 2007] [the fact that a contract exists designating a person as an independentcontractor is to be considered, but is not dispositive].)
It is also worth noting that the plaintiff's reliance on Devlin v City of New York (254AD2d 16 [1st Dept 1998]), is misplaced. In Devlin, this Court determined that the recordpresented a question of fact about whether a car company controlled its drivers so as to give riseto vicarious liability. In reaching this conclusion, we relied on the facts that the car companyrequired drivers to drive certain cars, wear certain clothing, charge fares set by the company, paymembership dues, attend a three-day orientation course taught by the company, follow companybylaws and working rules, and display the company name and logo in their vehicle in an openand obvious manner. Here, the facts are very different. Even a cursory look at the record revealsthat the only indicia of control exerted over Moodie by the corporate defendants were purelyincidental. (See e.g. Abouzeid v Grgas, 295 AD2d 376 [2d Dept 2002] [where alimousine driver, who struck and injured a person, received radio dispatches from the companyto pick up customers, was free to reject pickups, set his own hours, owned his own car, payed forgasoline and EZ passes, maintained insurance, was responsible for maintenance of his limousine,could hire drivers to work for him, and the company withheld no [*5]taxes for the driver, the court concluded that the control exercisedby the company over the driver was only incidental, and was insufficient to give rise to anemployment relationship].)
In my view, even under the most generous interpretation of the relationship between Moodieand the corporate defendants, it cannot be said that they had an employer-employee relationship.Therefore, I would affirm the order of the motion court in its entirety. [See 2007 NY SlipOp 32433(U).]
Footnote 1: In late October 2003, theplaintiff served a first amended complaint to include Moodie's alleged employer, ConsolidatedDelivery Logistics, Inc., as a defendant. Consolidated later changed its name to CD&L Inc. Theplaintiff, thereafter served a second amended complaint to include, as party defendants, theremaining named corporate defendants. She argued that the corporate veil should be pierced asto the wholly owned subsidiary and alter ego of CDL, defendant Olympic. The plaintiff alsoargued, inter alia, that the other defendants were shell corporations controlled by CDL, and thatMoodie's work on behalf of CDL was controlled by these defendants as well.
Footnote 2: The Form 1099 is the InternalRevenue Service's tax form used for independent contractors to report income. Income reportedon the Form 1099 does not have taxes taken out of it.
Footnote 3: It is undisputed that themarkings on the van contained Moodie's name and address.