Erny v. Distribution Systems of America, Inc.

Appellate Division of the Supreme Court of the State of New York

May 7, 2001

Versions:283 A.D.2d 391

724 N.Y.S.2d 622

2001 N.Y. App. Div. LEXIS 4700

—In an action to recover damages for personal injuries, the defendant Distribution Systems of America, Inc., appeals from an order of the Supreme Court, Queens County (Satterfield, J.), dated June 8, 2000, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it.

*392Ordered that the order is affirmed, with costs.

The Supreme Court properly denied the appellant’s motion for summary judgment since there is a triable issue of fact as to whether the defendant Ruth Medina, whose job it was to deliver advertising materials supplied by the appellant along a specified route, was an employee of the appellant or an independent contractor (see, Carrion v Orbit Messenger, 82 NY2d 742; Matter of Rivera, 69 NY2d 679, cert denied 481 US 1049; Matter of Field Delivery Serv., 66 NY2d 516; Matter of Di Martino, 59 NY2d 638; Lane v Lyons, 277 AD2d 428; Mason v Spendiff, 238 AD2d 780).

The appellant’s remaining contention is without merit. Bracken, P. J., Friedmann, Florio, H. Miller and Townes, JJ., concur.