McShane v. Foster

In an action to recover damages for personal injuries, etc., the defendant Miceli Park, Inc., s/h/a Miceli Pizzeria, appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Ain, J.), dated November 8, 1995, as denied its motion for summary judgment dismissing the complaint insofar as asserted against it. The plaintiffs cross-appeal, as limited by their brief, from so much of the same order, as denied their motion for summary judgment on the issue of liability against the defendants Christopher L. Foster and Miceli Pizzeria. Ordered that the order is affirmed, without costs or disbursements. Since there is conflicting testimony in the record as to how the accident occurred, and competing inferences may reasonably be drawn therefrom, summary judgment was properly denied on the issue of whether the defendants were negligent (see, Roth v City of New York, 130 AD2d 732; Myers v Fir Cab Corp., 64 NY2d 806). The court also properly determined that there was a triable issue of fact as to whether the defendant Chrisopher L. Foster was an independent contractor or employee of the defendant, Miceli Park, Inc. (see, Sarra v Hankewycz, 230 AD2d 780; Carrion v Orbit Messenger, 82 NY2d 742, 744). Miller, J. P., Santucci, Joy and Krausman, JJ., concur.