October 15, 2013
Allstate Insurance Company a/s/o Lily Beizem, Plaintiff-Respondent,
Groundlink Holdings LLC, Defendant-Appellant, and Chernor A. Jalloh, Defendant.
Defendant Groundlink Holdings LLC appeals from an order of the Civil Court of the City of New York, New York County (Frank P. Nervo, J.), entered April 5, 2013, which denied its motion for summary judgment dismissing the complaint as against it.
PRESENT: Lowe, III, P.J., Shulman, Torres, JJ.
Order (Frank P. Nervo, J.), entered April 5, 2013, affirmed, without costs.
We agree that summary judgment dismissal of this subrogation action as against the defendant-appellant limousine company is unwarranted. Appellant failed to eliminate all triable issues of fact as to whether defendant Jalloh, the driver of the offending vehicle, was an independent contractor or, instead, appellant's employee when the accident occurred (see Carrion v Orbit Messenger, 82 N.Y.2d 742, 744 ; Christ v Ongori, 82 A.D.3d 1031, 1032 ). The supporting affirmation submitted by appellant's counsel was devoid of evidentiary proof as to the nature of the working relationship between the codefendants, aside from its reliance on a form "Driver Agreement" between the two, which, while characterizing Jalloh as an independent contractor, was not dispositive of Jalloh's status (see D'Allaird v Markline Sales, Inc., 104 A.D.3d 1110, 1112 ). The terms of that agreement raised but did not resolve factual questions as to whether appellant's control over Jalloh and its other drivers "was more than minimal or incidental, and whether its direction, supervision, and input as to the means used to complete the work were sufficient to establish an employment relationship" (Rivera v Fenix Car Serv., 81 A.D.3d 622, 624 ). In light of appellant's failure to meet its prima facie burden, we need not address the sufficiency of the plaintiff's opposition papers (see Christ v Ongori, 82 A.D.3d at 1032).