Opinion
CA 02-01016
November 15, 2002.
Appeal from an order of Supreme Court, Niagara County (Fricano, J.), entered August 13, 2001, which, inter alia, denied the cross motion of defendant United Frontier Mutual Insurance Company for summary judgment.
BARTH, SULLIVAN BEHR, LLP, BUFFALO (LAURENCE D. BEHR OF COUNSEL), FOR DEFENDANT-APPELLANT.
TREVETT, LENWEAVER SALZER, P.C., ROCHESTER (CYNTHIA A. CONSTANTINO GLEASON OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., PINE, WISNER, SCUDDER, AND KEHOE, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed with costs.
Memorandum:
Plaintiff commenced this action seeking a declaration that defendant United Frontier Mutual Insurance Company (United) must defend and indemnify defendant Philip K. Birdsall, doing business as Phil's Home Improvement Co. (Birdsall), in the underlying personal injury action brought by plaintiff against Birdsall. Supreme Court properly denied plaintiff's motion and United's cross motion for summary judgment. There is a triable issue of fact concerning whether at the time of the accident plaintiff was an employee of Birdsall, thus excluding his underlying personal injury action from coverage under United's policy, or an independent contractor, thus requiring United to defend and indemnify Birdsall with respect to plaintiff's personal injury action ( see Erny v. Distribution Sys. of Am., 283 A.D.2d 391; Lane v. Lyons, 277 A.D.2d 428; Mason v. Spendiff, 238 A.D.2d 780, 781-782).