| Araneo v Town Bd. for Town of Clarkstown |
| 2008 NY Slip Op 07599 [55 AD3d 516] |
| October 7, 2008 |
| Appellate Division, Second Department |
| Michael Araneo, Appellant-Respondent, v Town Board forTown of Clarkstown et al., Respondents-Appellants. |
—[*1] Joseph A. Maria, P.C., White Plains, N.Y., for respondents-appellants.
In an action for a judgment declaring, inter alia, that the plaintiff was an employee of the defendantTown of Clarkstown from July 3, 1978, and continuing thereafter, the plaintiff appeals from so much ofan order of the Supreme Court, Rockland County (Nelson, J.), dated February 28, 2007, as grantedthose branches of the defendants' motion for summary judgment which were, in effect, to declare thatthe plaintiff was not an employee during the period subsequent to September 15, 1997, and to declarethat the plaintiff was not entitled to any retirement benefits, and denied his cross motion for summaryjudgment declaring that he was an employee of the defendant Town of Clarkstown from July 3, 1978 toJanuary 14, 2005, and the defendants cross-appeal from so much of the same order as denied thatbranch of their motion for summary judgment which was, in effect, to declare that the plaintiff was notan employee during the period prior to September 15, 1997.
Ordered that the order is affirmed insofar as appealed from; and it is further,
Ordered that the order is reversed insofar as cross-appealed from, on the law, and that branch ofthe defendants' motion for summary judgment which was, in effect, to declare that the plaintiff was notan employee during the period prior to September 15, 1997, is granted, and the matter is remitted tothe Supreme Court, Rockland County, for the entry of a judgment declaring that the plaintiff was not anemployee of the Town of Clarkstown at any time from July 3, 1978 to January 14, 2005; and it isfurther,[*2]
Ordered that one bill of costs is awarded to therespondents-appellants.
The plaintiff was the owner, president, and sole employee of the corporate entity Michael Araneo,Inc. (hereinafter the corporation). In or about 1970, the plaintiff began performing work for thedefendant Town of Clarkstown at the town dump. On September 15, 1997 the plaintiff, on behalf ofthe corporation, signed an agreement with the Town providing, inter alia, that the corporation wouldperform certain services at the Town's solid waste facility and other facilities. The contract expresslyprovided that the corporation and its employees would be acting as independent contractors and werenot to be considered employees of the Town. It is undisputed that, at all times, the plaintiff was paid bysubmitting payment vouchers to the Town Comptroller, that payment was generally made, not to theplaintiff, but to the corporate entity—and entirely to the corporate entity after the contract wassigned—that no funds were withheld by the Town for purposes of taxes or insurance, and thatthe corporation paid the requisite taxes and insurance on behalf of the plaintiff. It is also undisputed thatthe corporation carried liability insurance, that it maintained its own offices, that the Town paid thecorporation more than an individual employee would have been paid for the same work, and that, inperforming the work, the plaintiff used many of his own tools. Moreover, the plaintiff was not instructedon how to perform the work he did for the Town.
On or about January 8, 2002 the plaintiff commenced this action against, among others, the Town,for a judgment declaring that, beginning on July 3, 1978 and continuing thereafter, he was a townemployee entitled to all benefits enjoyed by such employees, including but not limited to, pension rights,health care, vacation time, sick leave, and personal time. The defendants moved for summary judgment,in effect, declaring that the plaintiff was not a town employee at any time from July 3, 1978 to January14, 2005 on the ground that the plaintiff had failed "to provide any evidence to support his claim." Theplaintiff cross-moved for summary judgment declaring that he was an employee of the defendant Townof Clarkstown from July 3, 1978 to January 14, 2005. The Supreme Court granted the defendants'motion with respect to retirement benefits for all periods and with respect to the period following thesigning of the contract in 1997 and denied their motion with respect to the period preceding the signingof the contract. It also denied the plaintiff's cross motion.
The determination of whether one is an employee or an independent contractor requiresexamination of all aspects of the arrangement between the parties (see Matter of Noel [Life Alert Emergency Response, Inc.—Commissionerof Labor], 38 AD3d 1082, 1083 [2007]), although "the critical inquiry . . .pertains to the degree of control exercised by the purported employer over the results produced or themeans used to achieve the results" (Bynog vCipriani Group, 1 NY3d 193, 198 [2003]; see Matter of Noel [Life Alert EmergencyResponse, Inc.—Commissioner of Labor], 38 AD3d at 1083; Bhanti v BrookhavenMem. Hosp. Med. Ctr., 260 AD2d 334, 335 [1999]). "Factors relevant to assessing controlinclude whether the worker (1) worked at his own convenience, (2) was free to engage in otheremployment, (3) received fringe benefits, (4) was on the employer's payroll and (5) was on a fixedschedule" (Bynog v Cipriani Group, 1 NY3d at 198). The fact that a contract exists designatinga person as an independent contractor is to be considered, but is not dispositive (see Gfeller v Russo, 45 AD3d 1301,1303 [2007]; Matter of Noel [Life AlertEmergency Response, Inc.—Commissioner of Labor], 38 AD3d 1082 [2007];Shah v Lokhandwala, 265 AD2d 396, 397 [1999]).
Here, the record plainly establishes that, at all times at issue, the plaintiff was an independentcontractor to the Town and not a town employee. Consequently, the defendants' motion for [*3]summary judgment should have been granted in its entirety.
In light of our determination, we need not reach the defendants' remaining contention, which, in anyevent, is not properly before us.
Since this is a declaratory judgment action, we remit the matter to the Supreme Court, RocklandCounty, for the entry of a judgment declaring that the plaintiff was not an employee of the Town ofClarkstown at any time from July 3, 1978, to January 14, 2005 (see Lanza v Wagner, 11NY2d 317, 334 [1962], lv dismissed 371 US 74 [1962], cert denied 371 US 901[1962]). Fisher, J.P., Carni, McCarthy and Belen, JJ., concur.