| Barak v Chen |
| 2011 NY Slip Op 06466 [87 AD3d 955] |
| September 13, 2011 |
| Appellate Division, Second Department |
| Jacob Barak et al., Respondents, v Kevin Chen, Defendant,and Carmel Car and Limousine Service, Inc., et al., Appellants. |
—[*1] Goldfarb & Gerzog, New York, N.Y. (Ira Gerzog of counsel), for respondents (no brieffiled).
In a consolidated action to recover damages for personal injuries, the defendants Carmel Carand Limousine Service, Inc., Fast Operating Corp., and Avik Kabessa appeal, as limited by theirbrief, from (1) so much of an order of the Supreme Court, Queens County (Siegal, J.), enteredDecember 22, 2009, as denied that branch of their motion which was, in effect, for summaryjudgment dismissing the complaint insofar as asserted against the defendant Carmel Car andLimousine Service, Inc., and (2) so much of an order of the same court dated June 28, 2010, asdenied their motion for leave to reargue that branch of their motion which was, in effect, forsummary judgment dismissing the complaint insofar as asserted against the defendant CarmelCar and Limousine Service, Inc., and denied that branch of their motion which was, in effect, forsummary judgment dismissing the complaint insofar as asserted against the defendant FastOperating Corp.
Ordered that the appeal by the defendant Carmel Car and Limousine Service, Inc., from somuch of the order dated June 28, 2010, as denied the motion for leave to reargue is dismissed, asno appeal lies from an order denying leave to reargue; and it is further,
Ordered that the order entered December 22, 2009, is reversed insofar as appealed from, onthe law, and that branch of the motion which was, in effect, for summary judgment dismissingthe complaint insofar as asserted against the defendant Carmel Car and Limousine Service, Inc.,is granted; and it is further,
Ordered that the order dated June 28, 2010, is reversed insofar as reviewed, on the law, andthat branch of the motion which was, in effect, for summary judgment dismissing the complaintinsofar as asserted against the defendant Fast Operating Corp. is granted; and it is further,
Ordered that one bill of costs is awarded to the appellants.[*2]
In this consolidated action, the plaintiffs allege that theysustained injuries while they were passengers in a vehicle owned and operated by the defendantKevin Chen. The plaintiffs commenced this action seeking to recover damages from Chen, aswell as from Chen's purported employer, the defendant Carmel Car and Limousine Service, Inc.(hereinafter Carmel), and Fast Operating Corp., a corporation doing business as Carmel Car andLimousine (hereinafter Fast Operating), and the principal of Fast Operating, Avik Kabessa(hereinafter collectively the Carmel defendants). The Carmel defendants moved, in effect, forsummary judgment dismissing the complaint insofar as asserted against them, contending thatthey were not vicariously liable for Chen's actions because he was an independent contractor, nottheir employee. In an order entered December 22, 2009, the Supreme Court denied that branch ofthe motion which was for summary judgment dismissing the complaint insofar as assertedagainst Carmel, but made no determination as to the branches of the motion relating to FastOperating and Kabessa. The Carmel defendants moved for leave to reargue.
In an order dated June 28, 2010, the Supreme Court, inter alia, denied their motion for leaveto reargue with respect to Carmel, awarded Kabessa summary judgment dismissing the complaintinsofar as asserted against him, and denied such relief to Fast Operating. The Carmel defendantsappeal from both orders.
"[T]he critical inquiry in determining whether an employment relationship exists pertains tothe degree of control exercised by the purported employer over the results produced or the meansused to achieve the results. Factors relevant to assessing control include whether the worker (1)worked at his own convenience, (2) was free to engage in other employment, (3) received fringebenefits, (4) was on the employer's payroll and (5) was on a fixed schedule" (Bynog v Cipriani Group, 1 NY3d193, 198 [2003] [citations omitted]; see Araneo v Town Bd. for Town of Clarkstown, 55 AD3d 516,519 [2008]). "[I]ncidental control over the results produced without further indicia of controlover the means employed to achieve the results will not constitute substantial evidence of anemployer-employee relationship" (Matter of Ted Is Back Corp. [Roberts], 64 NY2d 725,726 [1984]; see Rivera v Fenix CarServ. Corp., 81 AD3d 622 [2011]; Parisi v Loewen Dev. Corp., 5 AD3d 646 [2004]). "Where theproof on the issue of control presents no conflict in evidence or is undisputed, the matter mayproperly be determined as a matter of law" (Bhanti v Brookhaven Mem. Hosp. Med. Ctr.,260 AD2d 334, 335 [1999]).
Carmel and Fast Operating submitted evidence showing that persons driving for Carmel,such as Chen, owned and maintained their own vehicles, paid for their own automobileinsurance, received no salary but only retained a percentage of the fares and all of the tips,scheduled their own working hours, had discretion to reject dispatches, and were not providedwith W-2 statements. Such evidence established, prima facie, that they were entitled to judgmentas a matter of law, as they did not exercise sufficient control over Chen's work to give rise totheir liability under the doctrine of respondeat superior (see Pinto v TWR Express Corp., 22 AD3d 481 [2005]; Kuchinski v Charge & Ride, Inc., 21AD3d 1062, 1064 [2005]; Abouzeid v Grgas, 295 AD2d 376, 377 [2002]; Irrutiav Terrero, 227 AD2d 380 [1996]; see also Bynog v Cipriani Group, 1 NY3d at198-199).
In opposition, the plaintiffs submitted evidence showing, inter alia, that Chen believed hewas required to wear a Carmel uniform, that Carmel required Chen's vehicle to bear its logo, thatCarmel publicly referred to its drivers as "our drivers," and that on the date of the accident, theplaintiffs used a coupon issued by Carmel. Under the circumstances, such evidence wasinsufficient to raise a triable issue of fact as to whether Chen was an employee of Carmel and/orFast Operating (see Holcomb v TWRExpress, Inc., 11 AD3d 513 [2004]; Bhanti v Brookhaven Mem. Hosp. Med.Ctr., 260 AD2d at 335; Irrutia v Terrero, 227 AD2d at 381; cf. Carrion v OrbitMessenger, 82 NY2d 742, 744 [1993]; Halpin v Hernandez, 51 AD3d 724, 725 [2008]; Meyer v Martin, 16 AD3d 632,634 [2005]).
Finally, we decline the plaintiff's invitation to adopt the reasoning of the Appellate Division,First Department, in Devlin v City of New York (254 AD2d 16 [1998]), that an"additional factor that should be considered in regard to whether vicarious liability is appropriateis whether [the defendant car service company] held itself out to the public as being the employerof its drivers" (id. [*3]at 17). While we have citedDevlin in several of our decisions (see Rivera v Fenix Car Serv. Corp., 81 AD3d 622 [2011]; Holcomb v TWR Express, Inc., 11AD3d 513 [2004]; Abouzeid v Grgas, 295 AD2d 376 [2002]), we did so inconnection with its holding that the most crucial factor for determining when a relationship givesrise to an employer-employee relationship is control over the results produced or the means usedto achieve the results. We do not believe that whether Carmel and Fast Operating heldthemselves out as the employer of their drivers is probative of whether they controlled the resultsproduced or the means used to achieve those results.
Accordingly, the Supreme Court should have awarded summary judgment dismissing thecomplaint insofar as asserted against Carmel and Fast Operating. Covello, J.P., Belen, Hall andCohen, JJ., concur. [Prior Case History: 25 Misc 3d 1244(A), 2009 NY Slip Op52583(U).]