PINTO v. TWR EXPRESS CORP (2005)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Hubsher, J.), dated October 19, 2004, which granted the defendants' cross motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The defendants established their entitlement to summary judgment as a matter of law by demonstrating that there was no employment relationship between the driver involved in the plaintiff's accident and the defendant dispatcher (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572;  Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642;  Holcomb v. TWR Express, Inc., 11 A.D.3d 513, 782 N.Y.S.2d 840).   The evidence, which included a franchise agreement, clearly established that the driver was an independent contractor and that the defendant dispatcher exercised only incidental supervision or control over the driver in the performance of his work (see Holcomb v. TWR Express, Inc., supra;  Abouzeid v. Grgas, 295 A.D.2d 376, 377, 743 N.Y.S.2d 165).   The plaintiff failed to raise a triable issue of fact in opposition.