Crowell v. Larkins

—Appeal from so much of an order of Supreme Court, Onondaga County (Major, J.), entered March 13, 2002, that denied that part of defendant’s motion for summary judgment dismissing the complaint upon the ground that plaintiff was a coemployee of defendant. It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: Plaintiff commenced this Labor Law and common-law negligence action seeking damages for injuries that he sustained when he was struck in the left eye by a nail from a nail gun operated by defendant. Defendant moved for summary judgment dismissing the complaint on the ground that plaintiff was his coemployee and thus the action is barred by Workers’ Compensation Law § 29 (6). Supreme Court properly denied that part of the motion. The issue whether a plaintiff is an independent contractor or a coemployee of the defendant may be determined as a matter of law only “where [the] evidence is undisputed, and the facts are compellingly clear” (Greene v Osterhoudt, 251 AD2d 786, 787; see Melbourne v New York Life Ins. Co., 271 AD2d 296, 297; Crage v Kissing Bridge Ski Area, 186 AD2d 987, 988, lv denied 81 NY2d 702). That cannot be said here, and thus defendant’s motion for summary judgment was properly denied (see Wright v LaBrake, 267 AD2d 578, 579). Present — Wisner, J.P., Hurlbutt, Scudder, Gorski and Lawton, JJ.