Sarra v. Hankewycz

230 A.D.2d 780, 646 N.Y.S.2d 625, 1996 N.Y. App. Div. LEXIS 8380

Opinion

—In a negligence action to recover damages for personal injuries, etc., the defendant Eastflo, Inc., appeals from an order of the Supreme Court, Orange County (Sherwood, J.), dated July 17, 1995, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it.

Ordered that the order is affirmed, with costs.

Under the facts of this case, there is an issue of fact as to whether the nonmoving defendant Michael Hankewycz was.an independent contractor or an employee of Eastflo, Inc. Where the record raises "a question with respect to the nature of the relationship between the tortfeasor and his alleged principal, summary judgment is not warranted” (Carrion v Orbit Messenger, 82 NY2d 742, 744). Accordingly, the motion was properly denied.

Miller, J. P., O’Brien, Sullivan and Altman, JJ., concur.