| Gfeller v Russo |
| 2007 NY Slip Op 08519 [45 AD3d 1301] |
| November 9, 2007 |
| Appellate Division, Fourth Department |
| Mark Gfeller, Respondent, v Samuel P. Russo, Defendant, andNiagara Frontier Recovery, LLC, Appellant. |
—[*1] Gallo & Iacovangelo, LLP, Rochester (David D. Spoto of counsel), forplaintiff-respondent.
Appeal from an order of the Supreme Court, Livingston County (Joan S. Kohout, A.J.),entered March 27, 2006 in a personal injury action. The order denied the motion of defendantNiagara Frontier Recovery, LLC for summary judgment dismissing the amended complaintagainst it.
It is hereby ordered that the order so appealed from be and the same hereby is unanimouslyreversed on the law without costs, the motion is granted and the amended complaint againstdefendant Niagara Frontier Recovery, LLC is dismissed.
Memorandum: Plaintiff commenced this action seeking damages for injuries he sustainedwhen a vehicle owned and operated by defendant Samuel P. Russo struck plaintiff's vehicle.Plaintiff alleged that defendant Niagara Frontier Recovery, LLC (NFR) was vicariously liablebecause, at the time of the accident, Russo was an employee of NFR and was acting in the scopeof his employment. NFR moved for summary judgment dismissing the amended complaintagainst it on the ground that it was not vicariously liable for Russo's negligence because Russowas an independent contractor who was not acting within the scope of his employment at thetime of the accident. We conclude that Supreme Court erred in denying the motion.
"It is well settled that one who hires an independent contractor is not liable for theindependent contractor's negligent acts because the employer has no right to control the mannerin which the work is to be done" (Mercado v Slope Assoc., 246 AD2d 581, 581 [1998];see Kleeman v Rheingold, 81 NY2d 270, 273-274 [1993]; Rosenberg v EquitableLife Assur. Socy. of U.S., 79 NY2d 663, 668 [1992], rearg dismissed 82 NY2d 825[1993]). "Control of the method and means by which the work is to be done . . . isthe critical factor in determining whether one is an independent contractor or an employee for thepurposes of tort liability" (Berger v Dykstra, 203 AD2d 754, 754 [1994], lvdismissed 84 NY2d 965 [1994]; seeHarjes v Parisio, 1 AD3d 680, 680-681 [2003], lv denied 1 NY3d 508 [2004];Greene v Osterhoudt, 251 AD2d 786, 787 [1998]). Other factors to consider include"whether the [*2]individual furnishes his [or her] own tools orequipment, how payment is made and whether Social Security and other taxes are withheld fromsuch payments" (Greene, 251 AD2d at 787; see Harjes, 1 AD3d at 681).
In support of its motion, NFR presented evidence establishing that it had no control over themethod or means by which Russo performed his work; that Russo provided all of his own toolsand equipment when he performed vehicle repossession work for NFR; that Russo was paid anagreed-upon price per vehicle that was repossessed; and that NFR did not withhold SocialSecurity or other taxes from Russo's payments. Although most of his work came from NFR,Russo was free to seek employment from other sources and was not required to work exclusivelyfor NFR. Finally, although the fact that the contract between Russo and NFR expressly statedthat Russo was being retained as an independent contractor is not dispositive (see Shah vLokhandwala, 265 AD2d 396 [1999]), it nevertheless is a fact that should be considered. Wethus conclude that NFR met its burden of establishing as a matter of law that Russo was anindependent contractor for whom NFR was not vicariously liable (see e.g. Marino v Vega, 12 AD3d329 [2004]; Harjes, 1 AD3d at 681; Rokicki v 24 Hour Courier Serv., 294AD2d 555 [2002]; Greene, 251 AD2d at 787-788; Mercado, 246 AD2d 581[1998]; Berger, 203 AD2d at 754-755; cf. Lane v Lyons, 277 AD2d 428[2000]; Shah, 265 AD2d 396 [1999]).
Contrary to the contention of plaintiff, he failed to raise a triable issue of fact by submittingthe reports and forms completed by Russo that were on NFR letterhead and stated that thevehicles were received by "Phil Russo of [NFR]." Those documents do not establish that NFRexercised any control over the method or means by which Russo repossessed the vehicles, nor dothey otherwise raise an issue of fact whether there was an employment relationship between NFRand Russo.
Also contrary to plaintiff's contention, this case does not fall within an exception to thegeneral rule that employers are not liable for the negligent acts of independent contractors(see Rosenberg, 79 NY2d at 668; see also Kleeman, 81 NY2d at 274). The recorddoes not support the contention of plaintiff that the work being performed by Russo wasinherently dangerous (see Chainani v Board of Educ. of City of N.Y., 87 NY2d 370, 381[1995], rearg denied sub nom. Bruce v Hasbrouck, 87 NY2d 862 [1995]; Saini vTonju Assoc., 299 AD2d 244, 245-246 [2002]), nor does it support his contention that NFRwas negligent in hiring Russo (seeFarnsworth v Brookside Constr. Co., Inc., 31 AD3d 1149, 1151 [2006], lv denied7 NY3d 713 [2006]; Bellere v Gerics, 304 AD2d 687, 688 [2003]).
In any event, even if Russo were an employee of NFR for purposes of vicarious liability, wewould nevertheless conclude that he was not acting within the scope of that employment at thetime of the accident. It is undisputed that Russo was returning from purchasing cigarettes andgasoline at the time of the accident and that he did not have the necessary equipment to performvehicle repossession work. Although Russo testified at his deposition that he intended to performwork for NFR that evening, his work for NFR did not necessitate the travel. Thus, it cannot besaid that he was acting within the scope of his employment at the time of the accident (seeSwartzlander v Forms-Rite Bus. Forms & Print. Serv., 174 AD2d 971, 971-972 [1991],affd 78 NY2d 1060 [1991]; Cicatello v Sobierajski, 295 AD2d 974 [2002];see e.g. Marino, 12 AD3d 329 [2004]; Overton v Ebert, 180 AD2d 955, 956-957[1992], lv denied 80 NY2d 751 [1992]; cf. Virtuoso v Pepsi-Cola Co., 286 AD2d868 [2001]). Present—Hurlbutt, J.P., Martoche, Smith, Fahey and Pine, JJ.