BUYER FIRST CHOICE INC DOING BUSINESS AS REAL ESTATE DIRECT PLAINTIFF APPELLANT v. JOANNE SIMME ALSO KNOWN AS JOANNE SIMME GOOD DOING BUSINESS AS GOOD CHOICE DEFENDANT RESPONDENT

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Supreme Court, Appellate Division, Fourth Department.

BUYER'S FIRST CHOICE, INC., DOING BUSINESS AS 2.5% REAL ESTATE DIRECT, PLAINTIFF–APPELLANT, v. JOANNE SIMME, ALSO KNOWN AS JOANNE SIMME–GOOD, DOING BUSINESS AS GOOD CHOICE, DEFENDANT–RESPONDENT.

CA 14–02229

Decided: June 19, 2015

PRESENT:  SMITH, J.P., CENTRA, PERADOTTO, SCONIERS, AND WHALEN, JJ. JED CARROL, DEPEW, FOR PLAINTIFF–APPELLANT. WEISS & DETIG, GRAND ISLAND (NORTON T. LOWE OF COUNSEL), FOR DEFENDANT–RESPONDENT.

MEMORANDUM AND ORDER

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

Memorandum:  Plaintiff commenced this action seeking damages for defendant's alleged breach of her duty of loyalty to plaintiff during the time that she sold real estate on plaintiff's behalf.   On a prior appeal, we affirmed an order that denied plaintiff's motion to dismiss the counterclaim in defendant's second amended answer for failure to state a cause of action (Buyer's First Choice, Inc. v. Simme, 107 AD3d 1384).   We conclude on this appeal that County Court properly denied plaintiff's subsequent motion for summary judgment dismissing the same counterclaim to the extent that it alleges plaintiff's violation of Labor Law article 6, inasmuch as plaintiff failed to meet its burden of establishing as a matter of law that defendant was not an employee entitled to the protection of the statute.  “ ‘Employee’ is defined in Labor Law article 6 as ‘any person employed for hire by an employer in any employment’ “ (Akgul v. Prime Time Transp., 293 A.D.2d 631, 633, quoting Labor Law § 190[2] ).   While we agree with plaintiff that the definition of “employee” excludes independent contractors (see Hernandez v. Chefs Diet Delivery, LLC, 81 AD3d 596, 597;  Akgul, 293 A.D.2d at 633), we reject plaintiff's further contention that it established defendant's status as an independent contractor as a matter of law.   Rather, as the court properly determined, here “the nature of the [parties'] relationship is fact sensitive and ․ presents a question for the trier of fact” (Hernandez, 81 AD3d at 598).

Frances E. Cafarell

Clerk of the Court