Order, Supreme Court, New York County (Deborah Kaplan, J.), entered August 7, 2007, which granted the corporate defendants' motion for summary judgment dismissing the complaint as against them, denied, as moot, their motion to strike plaintiff's notice to admit, and denied plaintiff's cross motion for leave to renew her motion to strike certain portions of defendants' answer to her second amended complaint, modified, on the law, to deny the motion for summary judgment and remand for determination of defendants' motion to strike, and otherwise affirmed, without costs.
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Lippman, P.J., Catterson, Acosta, Renwick, JJ.
The evidence presents a triable issue whether the corporate defendants exercised sufficient control over defendant Moodie's work to potentially render them liable for injuries plaintiff suffered when she was struck by a delivery van driven by Moodie (see Carrion v Orbit Messenger, 82 NY2d 742 ). Moodie performed delivery services only for Olympic Courier Systems, Inc., a subsidiary of CD & L Inc., during the years in which he worked for CD & L pursuant to an independent contractor's agreement with Olympic; he used CD & L forms; he made deliveries and pick-ups at times specified by CD & L; his whereabouts were tracked by CD & L by means of a prepared schedule and regular contact through a CD & L computer and CD & L dispatchers; he was paid 57% of the gross billing receipts for work performed; he was obligated to procure insurance in an amount dictated by the independent contractor's agreement; he always wore a shirt bearing defendants' logo (see id; Devlin v City of New York, 254 AD2d 16 ).
The court correctly denied plaintiff's cross motion to renew her motion to strike, since the evidence she submitted, even if new, was not addressed to the issues raised either in her original motion or in defendants' motion for summary judgment.
All concur except Catterson, J. who dissents in a memorandum as follows:
CATTERSON J. (dissenting)
Because I believe that the evidence in this case clearly demonstrates that the corporate defendants lacked the requisite degree of control necessary to an employer-employee relationship with the defendant driver and therefore, are not vicariously liable, I must respectfully dissent.
This action results from an automobile accident which occurred on August 1, 2003. The plaintiff alleges that a van driven by the defendant Courtney D. Moodie struck her as she was attempting to cross the street. At the time of the accident, Moodie was delivering packages for defendant Olympic Courier Systems, Inc., the subsidiary of defendant CDL.
In October 2003, the plaintiff commenced a personal injury action against Moodie. Subsequently, the plaintiff added the corporate defendants as parties, alleging that they were vicariously liable for Moodie's negligence*fn1. On or about January 29, 2007, the corporate defendants moved for summary judgment on the grounds that Moodie was not an employee of any of the corporate defendants, but rather, an independent contractor who provided delivery services to the defendants. Therefore, they could not be held vicariously liable for his negligence.
In support of their motion, the corporate defendants relied on the "Independent Contractor Agreement" between Moodie and Olympic, as well as Moodie's payroll history and Form 1099s, and the EBT testimony of both Moodie and Curtis Hight, Olympic's Region Manager*fn2. The Agreement provided, inter alia, that Moodie was free to decide his own route for deliveries; could maintain a flexible work schedule for his business; was free to work for other companies; and could accept or reject the corporate defendants' regularly scheduled deliveries.
Moodie testified that he owned his own delivery van*fn3, and paid for the vehicle's registration, insurance, gas and upkeep. He described his work for CDL as "flexible." His weekly pay from CDL was based on commission, and it was variable depending on the number of deliveries and time worked. Moodie was required to file a W-4 form with CDL's payroll department and he identified Form 1099's from Olympic for the years 2000-2003.
Hight testified that Moodie was not an employee of either Olympic or CDL, that he never received employee-related benefits, that he was not treated as an employee for tax purposes, that Moodie paid his own work costs, and that he performed ...