Opinion
Argued May 24, 2001.
June 11, 2001.
In an action to recover damages for personal injuries and wrongful death, the defendant E.F. Au Pair appeals (1) from so much of an order of the Supreme Court, Westchester County (Cowhey, J.), entered May 2, 2000, as denied its motion pursuant to CPLR 3211 to dismiss the cross claims of the defendants Diana A. Lake and Sonny Quang-La insofar as asserted against it, and (2), as limited by its notice of appeal and brief, from so much of an order of the same court, entered October 4, 2000, as denied that branch of its motion which was to dismiss the ninth cause of action pursuant to CPLR 3211.
Morvillo, Abramowitz, Grand, Iason Silberberg, P.C., New York, N Y (Robert J. Anello of counsel), for appellant.
Bank, Sheer Seymour, White Plains, N.Y. (Michael S. Bank of counsel), for plaintiffs-respondents Karen Bank and Bonnie Newman.
Hynes Randazzo, LLP, White Plains, N.Y. (James A. Randazzo of counsel), for plaintiff-respondent Robert DiCesare.
Mead, Hecht, Conklin Gallagher, LLP, White Plains, N Y (Elizabeth M. Hecht and Sara Luca Salvi of counsel), for defendants-respondents Diana A. Lake and Sonny Quang-La.
Before: WILLIAM D. FRIEDMANN, J.P., ANITA R. FLORIO, NANCY E. SMITH, BARRY A. COZIER, JJ.
ORDERED that the order entered May 2, 2000, is reversed insofar as appealed from, without costs or disbursements, and the motion to dismiss the cross claims of the defendants Diana A. Lake and Sonny Quang-La insofar as asserted against the appellant is granted; and it is further,
ORDERED that the order entered October 4, 2000, is affirmed insofar as appealed from, without costs or disbursements. A motion to dismiss a cross claim can be granted pursuant to CPLR 3211(a)(1) only if the movant presents documentary evidence that "definitively dispose[s] of the * * * claim" (Roth v. Goldman, 254 A.D.2d 405, 406). The documents submitted provide that Diana A. Lake and Sonny Quang-La agreed to indemnify and release the appellant from any and all claims arising out of their participation in the au pair program involved in this case, and from any claims arising from the alleged negligence of the appellant. Absent a statute or public policy to the contrary, New York law generally enforces contractual provisions absolving a party from its own negligence (see, Colnaghi, USA v. Jewelers Protection Servs., 81 N.Y.2d 821; Sommer v. Federal Signal Corp., 79 N.Y.2d 540).
Contrary to the appellant's assertion, the Supreme Court properly denied that branch of its motion which was to dismiss the ninth cause of action asserted in the complaint to recover damages for employer liability. In determining whether an employer/employee relationship exists, a court may consider the terms of the agreement between the parties (see, Mason v. Spendiff, 238 A.D.2d 780). The documentary evidence submitted indicates that the defendant Sonny Quang-La may have been the appellant's employee.
The appellant's remaining contentions are without merit.