Carrion v. Orbit Messenger, Inc.

82 N.Y.2d 742 (1993)

621 N.E.2d 692

602 N.Y.S.2d 325

Victor Carrion et al., Respondents, v. Orbit Messenger, Inc., Appellant, et al., Defendants.

Court of Appeals of the State of New York.

Decided September 14, 1993.

O'Connor, O'Connor, Hintz & Deveney, Garden City (Robert E. O'Connor of counsel), for appellant.

Simonson Hess & Leibowitz, P. C., New York City (Alan B. Leibowitz of counsel) for respondents.

Chief Judge KAYE and Judges SIMONS, TITONE, HANCOCK, JR., BELLACOSA, SMITH and LEVINE concur in memorandum.

*743MEMORANDUM.

The order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.

*744It is well settled that whether an operator of a delivery vehicle is an agent, potentially rendering the principal liable under the doctrine of respondeat superior, or is an independent contractor, is a question for the trier of fact (see, Johnson v R.T.K. Petroleum Co., 289 N.Y. 101, rearg denied 289 N.Y. 646; Bratt v Midland Asphalt Corp., 8 N.Y.2d 963, 965). Here, plaintiffs' pleadings allege that the driver of the truck worked exclusively for defendant, that he was required to use defendant's name and forms when performing work for defendant and to return all defendant's receipts and job tickets. Defendant supplied the truck driver with workers' compensation insurance, paid him, on a weekly basis, 57% of defendant's gross billings, and supplied him with a check cashing card, signed by defendant's representative, on which he was described as an "employee". Because plaintiffs have submitted sufficient proof to raise a question with respect to the nature of the relationship between the tortfeasor and his alleged principal, summary judgment is not warranted.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, etc.