Smith v. Valentine Estates, Inc.

In an action to recover damages for personal injuries, plaintiff appeals from an order of the Supreme Court, Nassau County, entered January 21, 1975, which (1) denied his motion (a) to dismiss defendant Valentine Estates, Inc.’s affirmative defense (res judicata) as to plaintiff’s second cause of action and (b) for summary judgment on said cause of action and (2) dismissed the second cause of action. Order modified by striking therefrom everything after the words "is denied” and by adding thereto the following: "except that the motion is granted insofar as it seeks to dismiss the defense as to the second cause of action.” As so modified, order affirmed, with $20 costs and disbursements to appellant. The finding of the Workmen’s Compensation Board, that the Workmen’s Compensation Law was not applicable because of a lack of an employer-employee relationship, did not establish that there was no violation of section 130 of the Labor Law (cf. Vincent v Riggi & Sons, 30 NY2d 406; Matter of Beach v Velzy, 238 NY 100). The finding of the Workmen’s Compensation Board is conclusive as to the lack of an employer-employee relationship and the sole issue to be tried as to plaintiff’s status is whether he was an independent contractor and not an employee hired in violation of section 130 of the Labor Law. Hopkins, Acting P. J., Cohalan, Christ, Brennan and Munder, JJ., concur.