Preview
FILED: ERIE COUNTY CLERK 01/17/2020 04:16 PM INDEX NO. 805976/2016
NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 01/17/2020
STATE OF NEW YORK
SUPREME COURT : COUNTY OF ERIE
MARY P. RAYMOND,
Plaintiff,
v. MEMORANDUM OF LAW
JON M. HILLEBERT,
RYDER TRUCK RENTAL INC., Index No. 805976/2016
HOME DELIVERY LINK, INC.,
HOME DELIVERY, INC.,
JOHN DOE CORPORATION,
Defendants.
This memorandum of law is submitted in support of an Order of this Court for
Summary Judgement on negligence dismissing plaintiff's Complaint against these
defendants and for such other and further relief as this Court deems just and proper under
the circumstances.
To invoke the doctrine of respondeat superior, the plaintiff has the burden of
establishing that the act complained of occurred while the individual was acting within the
or her employment. Hacker v. New 26 A.D.2d 400 (1st Dept.
scope of his York, 1966);
v. New 240 A.D. 645 (2nd Dept. 1997).
Pekarsky York,
The general rule that a party who retains an independent contractor, as
distinguished from an employee, has no liability for the independent contractor's negligent
acts is based upon the premise that one who employs an independent contractor has no
right to ecatrol the manner in which the work is to be done and, thus, the risk of loss is
. placed on the contractor, Kleeman v Rheingold, 81 NY2d 270 (1993); Weinfeld v HR
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Buffalo,NewYork14203
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149 AD3d 1014 (2nd Dept. Goodwin v Comcast 42 AD3d
Photography, Inc., 2017); Corp.,
322 (1st Dept. Berger v 203 AD2d 754 (3rd Dept. 1994).
2007); Dykstra,
Where there is no conflict in the evidence, the question of whether an individual is
an independent contractor or employee may properly be determined by the court as a
matter of Shapiro v 102 AD2d 822 (2nd Dept. 63 NY2d 896
law, Robinson, 1984), aff'd,
Berger v 203 AD2d 754 (3rd Dept. Crage v Bridge Ski
(1984); Dykstra, 1994); Kissing Area,
186 AD2d 987 (4th Dept. v 179 AD2d 596 (1st Dept. Sikes
1992); Conroy Bevilacqua, 1992);
v Chevron 173 AD2d 810 (2nd Dept. Swarts v
Companies, 1991); Country Log Homes, Inc.,
807(2nd Hospital of New
135 AD2d Dept. 1987); Galligan v St. Vincent's City of York, 28
AD2d 592 (3rd Dept. see also v New 111 AD3d 5 (2nd Dept. 2013).
1967); Begley York,
Control of the method and means by which the work is to be done, therefore, is a
critical factor in determining whether one is an independent contractor or an ernployee for
the purposes of tort liability, Berger v Dykstra, supra; see Willis v New York, 266 AD2d 208
(2nd Dept. 1999). the retention of general powers over an
However, supervisory
independent contractor cannot alone form a basis for the imposition of liability against the
contractor's employer, Goodwin v Comcast Corp., supra; see Weinfeld v HR Photography,
Inc.,supra.
Based upon the relevant available testimony (i.e.,that of defendant Hillebert's ECC
Movers'
co-worker William Rager, and Home Delivery Link's Compliance Director,
Christopher Catton), it is undisputable that ECC Movers was an independent contractor
retained by Home Delivery Link to make the subject delivery and was the entity involved in
the subject accident. In fact, not only was ECC Movers a subcontractor for Home Delivery
Link, but the two individuals from ECC Movers LLC that were involved in the sub ject
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accident (defendant Jon M. Hillebert and co-worker William sub-
Rager) were, themselves,
contractors hired by ECC Movers and therefore the imposition of liability against Home
Delivery Link is twice removed.
As outlined in the above testimony, both Christopher Catton of Home Delivery Link
as well as William Rager of ECC Movers confirmed that ECC Movers had been retained by
Home Delivery Link as a subcontractor to make its deliveries from the Sears Roebuck
warehouse for Innovel Solutions. Both Mr. Catton and Mr. Rager confirmed that Home
Delivery Link did not control the means or methods of the actual deliveries themselves and
only provided route and customer information for purposes of ECC Movers effectuating the
deliveries to various customers under the subcontract. Mr. Rager also confirmed that both
he and defendant Hillebert were not even employees of ECC Movers but were, in fact,
subcontractors that ECC Movers had hired as part of their workforce. In other words,
defendant Hillebert and Mr. Rager were subcontractors of a subcontractor and, therefore,
were twice removed from Home Delivery Link. Mr. Rager also confirmed that he and Mr.
Hillebert were paid by ECC Movers and that CEO Adam Wilson of ECC Movers was present
at the Sears Roebuck warehouse every morning for purposes of supervising them and
making sure the deliveries went out as scheduled. Mr. Rager also confirmed that Luke
Windnagle of Home Delivery was not his actual supervisor and that he only considered him
supervisor-like because he was their only conduit to Innoval Solutions/Sears ifECC Movers
employees had an issue that they wanted to discuss about any particular route that was
assigned or ifa delivery needed to be cancelled after they called any of customers they had
deliveries scheduled for on a particular day. Clearly, this amounted to even far less than a
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retention of general supervisory powers over an independent contractor and cannot form
the basis for the imposition of liability against Home Delivery Link.
Additionally, the Independent Contractor Agreement between ECC Movers and
Home Delivery Link clearly places the liability for any claims resulting from deliveries on
.
ECC Movers. More specifically, paragraph 9 of the Independent Contractor Agreemeñt
states:
Contractor shall indemnify company and hold it harmless from any cost,
claim, judgment, or liability resulting from or otherwise arising from or
related to contractor's performance under this Agreement: Without
limiting the foregoing, this paragraph shall include injury or death of
persons driving, operating, repairing, maintaining, loading or unloading
contractor's equipment and loss and damage to items intended for
delivery which are in contractor's possession or under its control, and
damage to recipient customer's property and furnishings.
Regardless of whether or not there is a question of fact as to whether defendant Jon
Hillebert backed into plaintiff's vehicle as plaintiff claims, or if plaintiff had rear ended the
vehicle being operated by defendant Jon Hillebert while it was at a complete stop that day,
there is no question of fact regarding the independent contractor status of both ECC
Movers and defendant Jon Hillebert as well as the fact that Home Delivery Link did not
control the means or methods of the actual delivery that day.
Lastly, Christopher Catton of Home Delivery Link confirmed that defendant Home
Delivery Inc. was improperly named in this matter as it has absolutely no ccanection
whatsoever to Home Delivery Link or to the subject accident.
Accordingly, your deponent requests an Order of this Court dismissing plaintiffs
Complaint against Home Delivery Link Inc. and Home Delivery Inc.
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DATED: Buffalo, New York
January 17, 2020
GO BER LL LLP
Christo er G. Floreale, Esq.
neys for Defendants
HomeDelivery Link,Inc.,and Home Delivery Inc.
665 Main Street
Buffalo, New York 14203
(716) 566-5413
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Preview
FILED: ERIE COUNTY CLERK 01/17/2020 04:16 PM INDEX NO. 805976/2016 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 01/17/2020 STATE OF NEW YORK SUPREME COURT : COUNTY OF ERIE MARY P. RAYMOND, Plaintiff, v. MEMORANDUM OF LAW JON M. HILLEBERT, RYDER TRUCK RENTAL INC., Index No. 805976/2016 HOME DELIVERY LINK, INC., HOME DELIVERY, INC., JOHN DOE CORPORATION, Defendants. This memorandum of law is submitted in support of an Order of this Court for Summary Judgement on negligence dismissing plaintiff's Complaint against these defendants and for such other and further relief as this Court deems just and proper under the circumstances. To invoke the doctrine of respondeat superior, the plaintiff has the burden of establishing that the act complained of occurred while the individual was acting within the or her employment. Hacker v. New 26 A.D.2d 400 (1st Dept. scope of his York, 1966); v. New 240 A.D. 645 (2nd Dept. 1997). Pekarsky York, The general rule that a party who retains an independent contractor, as distinguished from an employee, has no liability for the independent contractor's negligent acts is based upon the premise that one who employs an independent contractor has no right to ecatrol the manner in which the work is to be done and, thus, the risk of loss is . placed on the contractor, Kleeman v Rheingold, 81 NY2d 270 (1993); Weinfeld v HR GOLDBERG SEGALLALLP 665MainStreet,Ste.400 Buffalo,NewYork14203 25161615.v1 1 of 5 FILED: ERIE COUNTY CLERK 01/17/2020 04:16 PM INDEX NO. 805976/2016 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 01/17/2020 149 AD3d 1014 (2nd Dept. Goodwin v Comcast 42 AD3d Photography, Inc., 2017); Corp., 322 (1st Dept. Berger v 203 AD2d 754 (3rd Dept. 1994). 2007); Dykstra, Where there is no conflict in the evidence, the question of whether an individual is an independent contractor or employee may properly be determined by the court as a matter of Shapiro v 102 AD2d 822 (2nd Dept. 63 NY2d 896 law, Robinson, 1984), aff'd, Berger v 203 AD2d 754 (3rd Dept. Crage v Bridge Ski (1984); Dykstra, 1994); Kissing Area, 186 AD2d 987 (4th Dept. v 179 AD2d 596 (1st Dept. Sikes 1992); Conroy Bevilacqua, 1992); v Chevron 173 AD2d 810 (2nd Dept. Swarts v Companies, 1991); Country Log Homes, Inc., 807(2nd Hospital of New 135 AD2d Dept. 1987); Galligan v St. Vincent's City of York, 28 AD2d 592 (3rd Dept. see also v New 111 AD3d 5 (2nd Dept. 2013). 1967); Begley York, Control of the method and means by which the work is to be done, therefore, is a critical factor in determining whether one is an independent contractor or an ernployee for the purposes of tort liability, Berger v Dykstra, supra; see Willis v New York, 266 AD2d 208 (2nd Dept. 1999). the retention of general powers over an However, supervisory independent contractor cannot alone form a basis for the imposition of liability against the contractor's employer, Goodwin v Comcast Corp., supra; see Weinfeld v HR Photography, Inc.,supra. Based upon the relevant available testimony (i.e.,that of defendant Hillebert's ECC Movers' co-worker William Rager, and Home Delivery Link's Compliance Director, Christopher Catton), it is undisputable that ECC Movers was an independent contractor retained by Home Delivery Link to make the subject delivery and was the entity involved in the subject accident. In fact, not only was ECC Movers a subcontractor for Home Delivery Link, but the two individuals from ECC Movers LLC that were involved in the sub ject GOLDBERG SEGAllA LLP 2 665MainStreet,Ste.400 Buffalo,NewYork14203 25161615.vi 2 of 5 FILED: ERIE COUNTY CLERK 01/17/2020 04:16 PM INDEX NO. 805976/2016 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 01/17/2020 accident (defendant Jon M. Hillebert and co-worker William sub- Rager) were, themselves, contractors hired by ECC Movers and therefore the imposition of liability against Home Delivery Link is twice removed. As outlined in the above testimony, both Christopher Catton of Home Delivery Link as well as William Rager of ECC Movers confirmed that ECC Movers had been retained by Home Delivery Link as a subcontractor to make its deliveries from the Sears Roebuck warehouse for Innovel Solutions. Both Mr. Catton and Mr. Rager confirmed that Home Delivery Link did not control the means or methods of the actual deliveries themselves and only provided route and customer information for purposes of ECC Movers effectuating the deliveries to various customers under the subcontract. Mr. Rager also confirmed that both he and defendant Hillebert were not even employees of ECC Movers but were, in fact, subcontractors that ECC Movers had hired as part of their workforce. In other words, defendant Hillebert and Mr. Rager were subcontractors of a subcontractor and, therefore, were twice removed from Home Delivery Link. Mr. Rager also confirmed that he and Mr. Hillebert were paid by ECC Movers and that CEO Adam Wilson of ECC Movers was present at the Sears Roebuck warehouse every morning for purposes of supervising them and making sure the deliveries went out as scheduled. Mr. Rager also confirmed that Luke Windnagle of Home Delivery was not his actual supervisor and that he only considered him supervisor-like because he was their only conduit to Innoval Solutions/Sears ifECC Movers employees had an issue that they wanted to discuss about any particular route that was assigned or ifa delivery needed to be cancelled after they called any of customers they had deliveries scheduled for on a particular day. Clearly, this amounted to even far less than a GOLDBERG SEGALLALLP 3 665MainStreet,Ste.400 Buffalo,NewYork14203 25161615.vi 3 of 5 FILED: ERIE COUNTY CLERK 01/17/2020 04:16 PM INDEX NO. 805976/2016 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 01/17/2020 retention of general supervisory powers over an independent contractor and cannot form the basis for the imposition of liability against Home Delivery Link. Additionally, the Independent Contractor Agreement between ECC Movers and Home Delivery Link clearly places the liability for any claims resulting from deliveries on . ECC Movers. More specifically, paragraph 9 of the Independent Contractor Agreemeñt states: Contractor shall indemnify company and hold it harmless from any cost, claim, judgment, or liability resulting from or otherwise arising from or related to contractor's performance under this Agreement: Without limiting the foregoing, this paragraph shall include injury or death of persons driving, operating, repairing, maintaining, loading or unloading contractor's equipment and loss and damage to items intended for delivery which are in contractor's possession or under its control, and damage to recipient customer's property and furnishings. Regardless of whether or not there is a question of fact as to whether defendant Jon Hillebert backed into plaintiff's vehicle as plaintiff claims, or if plaintiff had rear ended the vehicle being operated by defendant Jon Hillebert while it was at a complete stop that day, there is no question of fact regarding the independent contractor status of both ECC Movers and defendant Jon Hillebert as well as the fact that Home Delivery Link did not control the means or methods of the actual delivery that day. Lastly, Christopher Catton of Home Delivery Link confirmed that defendant Home Delivery Inc. was improperly named in this matter as it has absolutely no ccanection whatsoever to Home Delivery Link or to the subject accident. Accordingly, your deponent requests an Order of this Court dismissing plaintiffs Complaint against Home Delivery Link Inc. and Home Delivery Inc. GOLDBERG SEGAllA LLP 4 665MainStreet,Ste.400 Buffalo,NewYork14203 25161615.vi 4 of 5 FILED: ERIE COUNTY CLERK 01/17/2020 04:16 PM INDEX NO. 805976/2016 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 01/17/2020 DATED: Buffalo, New York January 17, 2020 GO BER LL LLP Christo er G. Floreale, Esq. neys for Defendants HomeDelivery Link,Inc.,and Home Delivery Inc. 665 Main Street Buffalo, New York 14203 (716) 566-5413 GOLDBERG SEGALLALLP 5 665MainStreet,Ste.400 Buffalo,NewYork14203 25161615.vl 5 of 5