175 Check Cashing Corp. v. Chubb Pacific Indemnity Group

— Order, Supreme Court, Bronx County (Alfred J. Callahan, J.), entered February 2,1982, granting reargument to the extent of recalling and modifying an earlier order which had granted defendant’s cross motion for summary judgment dismissing plaintiff’s second cause of action, affirmed, with costs. We are in agreement with the determination at Special Term that a factual issue exists as to the employment status of Grauso, which should not be resolved upon the conflicting affidavits adduced. Grauso claimed that he was not an employee and did not work for 175 Check Cashing Corp. This was supported by Levine, an employee of plaintiff, who likewise denied that Grauso was an employee or that he ever went inside the caged area where employees worked. The record does not reflect whether Levine was a “disinterested witness,” as is characterized by the dissent. All that appears in the record is that he was a former employee of the plaintiff. His credibility and any interest or bias are matters for the trier of the facts. Levine’s account, however, was refuted by Joseph Lieto, an employee of American Express Company, who stated that he had dealings with plaintiff and, in particular with Grauso, who represented himself to be an employee and manager of the plaintiff. Lieto observed Grauso, at various times, inside the caged area and at the company safe, performing work tasks, like any other employee, dealing with instruments, money orders and checks. Although Grauso had apparently contemplated the purchase of a stock interest in the corporation, according to Lieto, Grauso indicated to him that he would continue as manager-employee. In support of the motion to renew, Lieto specifically stated, immediately preceding the sentence quoted by the dissent: “Leonard grauso had stated to me that he was an employee of 175 check cashing corp. and he had all the indicia of an employee including handling various funds and instruments, including having available to him and having access to the American Express money orders. Leonard grauso represented himself to be an employee and was acting in the capacity as manager of the premises at the times that I was dealing with him at the premises. I was also advised by Grauso that he was going to be a purchaser of a stock interest in the 175 check cashing corp. and he was to continue as a manager in the premises.” Jose Matos, plaintiff’s president, confirmed that Grauso had undertaken to manage the facility and would remain in that capacity after he became a stockholder. Nevertheless, according to Matos, plaintiff retained the right to govern and direct Grauso’s performance as an employee. Matos also stated that, inasmuch as Grauso was with plaintiff for a limited time, from June 22 to July 5,1979, he was not employed long enough for a W-2 form to have been prepared, and any wages to have been paid to him were offset against the amount alleged to have been stolen. Under the circumstances, there are sufficient factual issues concerning the employment status of Grauso to warrant a trial, especially in view of the conflicting affidavits herein. Both sides have submitted carefully tailored affidavits, clearly designed to promote the respective positions which each has assumed. The credibility and interest of the parties, however, Levine and Grauso on the one hand, and Matos and Lieto on the other, is not a matter to be resolved summarily. The factual issue should properly await resolution at trial. In concluding otherwise, the dissent has credited one account offered by the insurer to the exclusion of the conflicting version by plaintiff’s president, who claims that Grauso, as an employee, managed the operation while he was in Puerto Rico. While conceding that Grauso may have held a managerial role, our dissenting colleagues nevertheless conclude that he was not an employee 702 within the coverage of the policy. To the contrary, the terms are not mutually exclusive. Whether Grauso satisfied the insurance definition of the term “employee” is a matter susceptible to proof at trial. This is particularly so if one takes into account that, from the nature of the business, it is conceivable that only employees entrusted to handle funds and checks would normally be found within the enclosed cage area, where Grauso was seen working in conjunction with other employees. Likewise of a factual nature is the sufficiency of the proof with respect to the occurrence of the theft and the amount of the loss. Matos, in an affidavit submitted on the original motion, supported by the sworn proof of loss filed with the insurer, attested to the occurrence of the theft, the period of time during which the loss occurred, and the amount which comprised the loss in the total sum of $90,481.35, including the fact that the theft was reported to the Bronx District Attorney. Whether there was a loss resulting from an insured event within the coverage of the policy and the amount of any such loss are factual issues, inappropriate for resolution summarily, particularly on the contradictory proof adduced on this record. The operative standard on a motion for summary judgment is issue finding, not issue determination (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404; Esteve v Abad, 271 App Div 725, 727). We disagree with the fact-finding analysis of the dissent. The determination of whether a person falls within the policy definition of “employee” depends upon whether the proof satisfies the three-pronged test, namely, that the person (1) be compensated by the insured in the form of wages, salary, commissions or otherwise; (2) remain subject to the direction and control of the insured in terms of performance of duties; and (3) not be a broker, agent, factor, commission merchant, consignee or contractor, or other general agent (see Fortunoff Silver Sales v Hartford Acc. & Ind. Co., a Part of Hartford Ind. Group, 92 AD2d 880, mot for rearg and lv to app den NYLJ, May 27, 1983, p 13, col 1; Gross Veneer Co. v American Mut. Ins. Cos., 73 AD2d 1028, 1029). Concur — Murphy; P. J., Kupferman and Kassal, JJ.