Irrutia v. Terrero

227 A.D.2d 380, 642 N.Y.S.2d 328, 1996 N.Y. App. Div. LEXIS 4888

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 6, 1996
• Status: Published

Opinion

In an action to recover damages for personal injuries, etc., the defendant Corona Car Service Corp. appeals from so much of an order of the Supreme Court, Queens County (LeVine, J.), dated August 2, 1994, as denied its cross motion for summary judgment dismissing the complaint and all cross claims insofar as they are asserted against it.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, the cross motion of the defendant Coroña Car Service Corporation is granted, the complaint and all cross claims are dismissed insofar as they are asserted against it, and the action against the remaining defendants is severed.

There are no material questions of fact with respect to the plaintiffs’ claim that driver Julio Terrero was an employee of Corona Car Service Corporation (hereinafter Corona Car). Although drivers interested in receiving dispatches from Corona Car agreed to certain basic standards of conduct and rules of operation, these rules and standards related to largely incidental matters and constituted the exercise by Corona Car of only general supervisory powers (cf., Lazo v Mak’s Trading Co., 199 AD2d 165, 166; Matter of Pavan [UTOG 2-Way Radio Assn.], 173 AD2d 1036). More particularly, the record reveals that the persons driving for Corona Car owned and maintained their own vehicles, received no salary, retained their own fares, obtained their own" health, automobile, and disability insurance, and were at liberty to maintain their own schedule of working hours. Under these circumstances, Corona Car retained only "incidental control over the results produced without further indicia of control over the means employed to achieve the results” (Matter of Ted Is Back Corp., 64 NY2d 725, 726; see also, Matter of Rukh [Battery City Car & Limousine Serv.], 208 AD2d 1105; Matter of Bishai [Tel-A-Car of N. Y.], 208 AD2d 1103; Matter of Pavan [UTOG 2-Way Radio Assn.], supra). Thompson, J. P., Joy, Krausman and Florio, JJ., concur.