LANE v. Orange County Publications, Division of Ottaway Newspapers, Inc., d/b/a Times Herald Record, Appellant. (2000)

Supreme Court, Appellate Division, Second Department, New York.

Frederick LANE, etc., Respondent, v. John H. LYONS, Defendant, Orange County Publications, Division of Ottaway Newspapers, Inc., d/b/a Times Herald Record, Appellant.

Decided: November 27, 2000

GUY JAMES MANGANO, P.J., SONDRA MILLER, LEO F. McGINITY, DANIEL F. LUCIANO and NANCY E. SMITH, JJ. Roemer Wallens & Mineaux, LLP, Albany, N.Y. (Matthew J. Kelly of counsel), for appellant. Feldman, Kleidman & Coffey, LLP, Fishkill, N.Y. (Denise M. Fitzpatrick of counsel), for respondent.

In an action, inter alia, to recover damages for conscious pain and suffering and wrongful death, the defendant Orange County Publications, Division of Ottaway Newspapers, Inc., d/b/a Times Herald Record appeals from an order of the Supreme Court, Orange County (Owen, J.), dated March 21, 2000, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed, with costs.

The plaintiff's decedent was fatally injured in a car accident involving a van owned and operated by the defendant John H. Lyons.   We agree with the Supreme Court that the appellant failed to establish a prima facie case that it was entitled to judgment as a matter of law.   The appellant contended that Lyons was an independent contractor and therefore it would not be liable for damages pursuant to the doctrine of respondeat superior.   Lyons used his own vehicle, was not reimbursed for gas, insurance, or any other work-related expenses, and was a non-employee for tax purposes, which would tend to indicate that he was an independent contractor (see, Greene v. Osterhoudt, 251 A.D.2d 786, 673 N.Y.S.2d 272;  Mason v. Spendiff, 238 A.D.2d 780, 656 N.Y.S.2d 462;  Stevens v. Spec Inc., 224 A.D.2d 811, 637 N.Y.S.2d 979).   However, the appellant regularly gave Lyons a specific list of subscriptions of papers to be delivered, payment for the subscriptions was made directly to the appellant, and Lyons was not obligated to solicit subscriptions, which would tend to indicate an employer-employee relationship (see, Mason v. Spendiff, supra;  Matter of Paolucci v. Capital Newspapers, 229 A.D.2d 751, 645 N.Y.S.2d 603;  Matter of Wells [Utica Observer-Dispatch & Utica Daily Press-Roberts], 87 A.D.2d 960, 451 N.Y.S.2d 213, affd. sub nom. Matter of Di Martino [Buffalo Courier Express Co.-Ross], 59 N.Y.2d 638, 463 N.Y.S.2d 189, 449 N.E.2d 1267).   Therefore, there is a question of fact as to whether Lyons was an employee of the appellant or an independent contractor at the time of the accident (see, Carrion v. Orbit Messenger, 82 N.Y.2d 742, 602 N.Y.S.2d 325, 621 N.E.2d 692;  Valdez v. Melba Utica Packing Co., 226 A.D.2d 627, 641 N.Y.S.2d 385).

MEMORANDUM BY THE COURT.