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April 14, 1992

PETER A. TARTAGLIONE and VALERIE TARTAGLIONE, Plaintiffs, against SHAW'S EXPRESS, INC. and PUTNAM TRANSFER & STORAGE CO., Defendants. PUTNAM TRANSFER & STORAGE CO., Third-Party Plaintiff, -against- VINCENT KISH and MARK McFANE, Third-Party Defendants.

The opinion of the court was delivered by: KIMBA M. WOOD


 Defendant Shaw's Express, Inc. ("Defendant Shaw") and Defendant Putnam Transfer & Storage Company ("Defendant Putnam") move for summary judgment pursuant to Rule 56(b) of the Federal Rules of Civil Procedure. For the reasons set forth below, the Court grants summary judgment in favor of Defendants Shaw and Putnam.


 On December 8, 1987, Plaintiff Peter Tartaglione was operating a motor vehicle on the Cross-Bronx Expressway in the Bronx, New York, when he collided with a truck owned by Vincent Kish and operated by Mark McFane. Plaintiff Peter Tartaglione suffered personal injuries as a result of the collision.

 Plaintiffs Peter Tartaglione, the driver, and Valerie Tartaglione, the owner of the vehicle involved in the collision, sued Kish and McFane in State Supreme Court on January 25, 1988, seeking damages for personal injuries resulting from the collision. On September 9, 1988, the court entered an order granting Plaintiffs summary judgment against McFane and Kish and permitting Plaintiffs to take an inquest in order to assess damages. Apparently, both McFane and Kish were uninsured and no inquest was taken. (Def. Putnam's Memorandum of Law in Support of Summary Judgment [hereinafter "Def. Putnam's Mem."], at 3).

 The truck involved in the accident was transporting goods in interstate commerce. Defendant Shaw is the Interstate Commerce Commission ("ICC") licensed property broker that arranged for the shipment of goods. Defendant Putnam had leased the truck for the purpose of transporting goods in interstate commerce but it had terminated the lease two months prior to the accident.

 On July 18, 1989, Plaintiffs filed the present action against Defendants Shaw and Putnam, alleging that the motor vehicle collision that led to Plaintiff Peter Tartaglione's personal injuries resulted from the negligence of these two Defendants. Plaintiffs allege that Defendant Shaw is responsible for Plaintiffs' injuries because, in failing to comply with ICC regulations mandating that a broker place goods into the stream of interstate commerce only with a certified motor carrier, Defendant Shaw breached its duties to the general public under the Interstate Commerce Act ("ICA"). Plaintiffs further allege that Defendant Putnam is liable for the negligent acts of Kish and McFane because of its failure to terminate properly its leases with Kish, the owner of the truck involved in the accident; as a result, Plaintiffs allege that McFane, the driver of the vehicle, was the "statutory employee" of Defendant Putnam at the time of the accident. (Plaintiffs' Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment [hereinafter "Pls.' Mem."], at 1). Plaintiffs allege that, as the statutory employer of McFane, Defendant Putnam should be held liable for McFane's negligent acts. (Pls.' Mem. at 2). Both Defendants Shaw and Putnam move for summary judgment. For the reasons stated below, the Court grants Defendants' motions for summary judgment.


 According to Rule 56 of the Federal Rules of Civil Procedure, summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. Proc. 56(c). When considering a motion for summary judgment, a court must resolve "all ambiguities and inferences to be drawn from the underlying facts . . . in favor of the party opposing the motion. . . ." Brady v. Town of Colchester, 863 F.2d 205, 210 (2d Cir. 1988) (citations omitted).

 The moving party bears the initial burden of demonstrating that no factual issue exists and that it is entitled to judgment as a matter of law. Celotex v. Catrett, 477 U.S. 317, 330, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Furthermore, motions for summary judgment must be denied "if reasonable minds could differ as to the import of the evidence" and "'if . . . there is any evidence in the record from any source from which a reasonable inference in the [nonmoving party's] favor may be drawn.'" Brady, 863 F.2d at 211 (citations omitted). On the other hand, "if the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986) (citations omitted). "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Id. at 252.

 I. Defendant Shaw's Motion for Summary Judgment

 Defendant Shaw moves for summary judgment, claiming that the relation between Defendant Shaw and McFann and Kish is that of independent contractors, not of agents. (Defendant Shaw's Memorandum of Law in Support of Summary Judgment [hereinafter "Def. Shaw's Mem."] at 2-5). Defendant Shaw argues that it did not exercise sufficient control over the details of McFann and Kish's trip to create an agency relationship. For example, Defendant Shaw states that it controlled neither the route chosen by Kish and McFann nor the gas and oil they used. (Def. Shaw's Mem. at 2). Defendant Shaw's only interest was that the cargo be delivered to its ultimate destination. (Def. Shaw's Mem. at 2). Plaintiffs respond that Defendant Shaw did control the location where the goods were picked up and delivered. (Norma Gifford's Affidavit, P28).

 Under New York law, "it is well settled that an agency relationship 'results from the manifestation of consent by one person to another that the other act on his behalf and subject to his control, and consent by the other so to act.'" E.B.A. Wholesale v. S.B. Mechanical Corp., 127 A.D.2d 737, 512 N.Y.S.2d 130, 131 (1987) (citations omitted). "In contrast, 'an independent contractor is a person who contracts with another to do something for him but who is not controlled by the other or subject to the other's right to control with respect to his physical conduct in the performance of the undertaking.'" Id. (citations omitted). In other words, "an independent contractor is one who, in exercising an independent employment, . . . is not ...

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