Cardone v. Villa Margherita, Inc.

245 A.D.2d 257, 666 N.Y.S.2d 15, 1997 N.Y. App. Div. LEXIS 12076

Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Bucaria, J.), dated October 23, 1996, which denied his motion to dismiss certain affirmative defenses.

Ordered that the order is affirmed, with costs.

The Supreme Court properly denied the plaintiff’s motion to dismiss certain affirmative defenses. These defenses would be barred by Workers’ Compensation Law § 11 if the plaintiff were an employee of the defendant. The defendant has submitted sufficient proof to raise a material question of fact with respect to the exact nature of the plaintiff’s employment relationship with the defendant to defeat the plaintiffs motion (see, Carrion v Orbit Messenger, 192 AD2d 366, 367-368, affd 82 NY2d 742). Thompson, J. P., Pizzuto, Joy and Florio, JJ., concur.