Lazo v. Mak's Trading Co.

199 A.D.2d 165, 605 N.Y.S.2d 272, 1993 N.Y. App. Div. LEXIS 12162

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 21, 1993
• Status: Published

Opinions

Order of Supreme Court, New York County (Stuart C. Cohen, J.), entered on or about November 16, 1992, which, inter alia, denied defendant’s cross-motion for summary judgment pursuant to CPLR 3212, reversed insofar as appealed from, on the law, without costs, defendant’s cross-motion is granted and the clerk is directed to enter judgment in favor of the defendant accordingly.

Defendant operates a wholesale and retail grocery store located at 179 East Broadway in Manhattan. Plaintiff, the operator of a tractor trailer, delivered 450 sacks of rice to the defendant’s premises on December 31, 1990. Plaintiff commenced this action to recover for injuries allegedly sustained when one of three men hired by defendant to unload the sacks of rice from the plaintiff’s truck assaulted him.

The circumstances of the three laborers’ employment by the defendant are not disputed. Defendant’s manager, Mr. Mak, testified at his deposition that the three men, who were known to him only as "Tony”, "Tony’s father” and "Willie”, would usually ask each morning if there was work and, if they were needed, would be told to return at a certain time. The work usually consisted of unloading a truck. After the work was completed "Tony’s father” would be paid $80 which he would then share with the others as he saw fit. Mr. Mak stated that he considered the three men to be independent contractors and that they had done work for him in this manner since about 1988.

During his deposition, plaintiff himself testified that he saw the same three individuals performing the same work at other locations in the area and, that the three men helped him unload his truck on several prior occasions at other businesses without incident. There was no evidence that anyone from the defendant company actively directed or controlled the work done by the three men apart from telling them where to place the sacks inside the store. The defendant did not supply the three with equipment or direct the manner in which the sacks were unloaded from the truck and transported into the store. Plaintiff stated only that when "Tony” cursed at him sometime before the assault occurred, he reported the incident to an unidentified agent of the defendant, who in turn told "Tony” not to disrupt plaintiff’s work. However, Mr. Mak testified that no such conversation occurred.

The determination of whether one is an independent contractor typically involves a question of fact concerning which party controls the methods and means by which the work is to be done (Crage v Kissing Bridge Ski Area, 186 AD2d 987, 988 lv denied 81 NY2d 702). However, where the proof on the issue of control presents no conflict in evidence the matter may properly be determined by the court as a matter of law (supra, at 988, citing Matter of Beach v Velzy, 238 NY 100). The proof submitted on the motion and cross-motion demonstrates that the three individuals hired by defendant to unload plaintiff’s truck were independent contractors, as a matter of law (compare, Conway v Rossi, 192 AD2d 855; Zelen v City of Saratoga Springs, 187 AD2d 818). At most defendant retained general supervisory powers over the three men. However, the mere retention of general supervisory powers over independent contractors cannot be a basis for the imposition of liability for their acts (Wright v Esplanade Gardens, 150 AD2d 197, 198, citing Foran v March & McLennan, 29 AD2d 857). Moreover, given all of the evidence submitted, plaintiffs deposition testimony, that he told an unidentified agent of the defendant that Tony cursed at him, does not raise a question regarding either the extent of defendant’s control over the three laborers or defendant’s knowledge of Tony’s alleged violent propensities. Consequently, the general rule, that the employer of an independent contractor is not liable for injury caused to a third party by an act or omission of an independent contractor or said contractor’s employees, applies in this case (Zelen v City of Saratoga Springs, supra, at 819; Wright v Esplanade Gardens, supra; see, Del Signore v Pyramid Sec. Servs., 147 AD2d 759, 760). Concur—Sullivan, J. P., Ross and Nardelli, JJ.