Daniel N. Fernandez, respondent, v. Earl E. Conklin, et al., defendants, Publishers Circulation Fulfillment, Inc., appellant.

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

Daniel N. Fernandez, respondent, v. Earl E. Conklin, et al., defendants, Publishers Circulation Fulfillment, Inc., appellant.

2019–00770 (Index No. 1634/16)

Decided: December 02, 2020

WILLIAM F. MASTRO, J.P. JOHN M. LEVENTHAL SYLVIA O. HINDS–RADIX JOSEPH J. MALTESE, JJ. Thomas K. Moore (Andrea G. Sawyers, Melville, N.Y. [David R. Holland], of counsel), for appellant. Patrick S. Owen, PLLC, Middletown, NY, for respondent.

Argued—October 16, 2020

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant Publishers Circulation Fulfillment, Inc., appeals from an order of the Supreme Court, Orange County (Robert A. Onofry, J.), dated December 5, 2018.  The order denied the motion of the defendant Publishers Circulation Fulfillment, Inc., for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.

ORDERED that the order is affirmed, with costs.

The plaintiff commenced this action against Earl E. Conklin, Publishers Circulation Fulfillment, Inc. (hereinafter the defendant), and Local Media Group, Inc., to recover damages for personal injuries.  The plaintiff alleged that he was struck and injured by a vehicle operated by Conklin, who, pursuant to an agreement with the defendant, had just completed delivering newspapers on the morning of October 17, 2013.  The plaintiff sought to recover damages from the defendant pursuant to the doctrine of respondeat superior.  The defendant moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against it on the ground that it was not Conklin's employer.  In an order dated December 5, 2018, the Supreme Court denied the motion.  The defendant appeals.  We affirm.

“The doctrine of respondeat superior renders a master vicariously liable for a tort committed by his [or her] servant within the scope of employment.  Conversely, the general rule is that an employer who hires an independent contractor is not liable for the independent contractor's negligent acts” (Rivera v. Fenix Car Serv. Corp., 81 AD3d 622, 623).  “The critical inquiry in determining whether an employment relationship exists ‘pertains to the degree of control exercised by the purported employer over the results produced or the means used to achieve the results.  Factors relevant to assessing control include whether the worker (1) worked at his [or her] own convenience, (2) was free to engage in other employment, (3) received fringe benefits, (4) was on the employer's payroll and (5) was on a fixed schedule’ ” (Castro–Queseada v. Tuapanta, 148 AD3d 978, 979, quoting Barak v. Chen, 87 AD3d 955, 957 [internal quotation marks omitted] ).  “The fact that a contract exists designating a person as an independent contractor is to be considered, but is not dispositive” (Araneo v Town Bd. for Town of Clarkstown, 55 AD3d 516, 518).  Here, the defendant failed to establish, prima facie, that Conklin was an independent contractor (see Galvan v. Robinson, 50 AD3d 954, 955;  Lane v. Lyons, 277 A.D.2d 428, 428).  We therefore agree with the Supreme Court's determination denying the defendant's motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, regardless of the sufficiency of the opposing papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853).

The parties' remaining contentions need not be reached in light of our determination.

MASTRO, J.P., LEVENTHAL, HINDS–RADIX and MALTESE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

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