CROWELL v. LARKINS (2002)

 Plaintiff commenced this Labor Law and common-law negligence action seeking damages for injuries that he sustained when he was struck in the left eye by a nail from a nail gun operated by defendant.   Defendant moved for summary judgment dismissing the complaint on the ground that plaintiff was his coemployee and thus the action is barred by Workers' Compensation Law § 29(6).   Supreme Court properly denied that part of the motion.   The issue whether a plaintiff is an independent contractor or a coemployee of the defendant may be determined as a matter of law only “where [the] evidence is undisputed, and the facts are compellingly clear” (Greene v. Osterhoudt, 251 A.D.2d 786, 787, 673 N.Y.S.2d 272;  see Melbourne v. New York Life Ins. Co., 271 A.D.2d 296, 297, 707 N.Y.S.2d 64;  Crage v. Kissing Bridge Ski Area, 186 A.D.2d 987, 988, 588 N.Y.S.2d 449, lv. denied 81 N.Y.2d 702, 594 N.Y.S.2d 716, 610 N.E.2d 389).   That cannot be said here, and thus defendant's motion for summary judgment was properly denied (see Wright v. LaBrake, 267 A.D.2d 578, 579, 699 N.Y.S.2d 227).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: