AYCARDI v. ROBINSON LLC (2015)

Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered on or about April 28, 2014, which denied the motion of defendant Town Sports International, LLC (TSI) for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

Plaintiff alleges that she was hit by defendant Robinson's car as she was crossing a street intersection. At the time of the accident, Robinson, a trainer for TSI, was driving his own car between two sports club locations, where he was either training clients or meeting with a manager, at the time of the alleged accident.

The motion court properly determined that TSI had not established entitlement to summary judgment dismissing the claim seeking to hold it vicariously liable for Robinson's negligent driving. TSI did not submit evidence sufficient to establish that Robinson, who worked over 40 hours a week and received a W–2 form, was merely an independent contractor, rather than an employee (see Bynog v. Cipriani Group, 1 NY3d 193, 198–199 [2003] ). Furthermore, although Robinson was driving his own car and was not required to have a car for work, his conduct occurred during the work day, while driving between work locations, which TSI reasonably could have anticipated he would do. Thus, triable issues exist as to whether Robinson was acting in furtherance of his employment and subject to TSI's control at the time of the accident (see generally Riviello v. Waldron, 47 N.Y.2d 297, 303 [1979]; Lundberg v. State of New York, 25 N.Y.2d 467, 470 [1969]; see also Palumbo v. Prenga, 295 A.D.2d 170 [1st Dept 2002]; Makoske v. Lombardy, 47 A.D.2d 284, 288 [3d Dept 1975], affd 39 N.Y.2d 773 [1976] ).