Opinion
January 24, 1994
Appeal from the Supreme Court, Westchester County (Ruskin, J.).
Ordered that the order entered February 6, 1991, is affirmed; and it is further,
Ordered that the order entered June 27, 1991, is affirmed insofar as appealed from; and it is further,
Ordered that the respondent Northwestern Mutual Life Insurance Company is awarded one bill of costs, payable by the appellant.
On October 1, 1987, the plaintiff entered into a contract with defendant Austin E. Hodgkins, Jr., a General Agent for Northwestern Mutual Life Insurance Company (hereinafter NML), under which the plaintiff was to become a District Agent. Pursuant to paragraph 4 of that contract as well as the contract between Hodgkins and NML, a General Agent and a District Agent are independent contractors and not employees of NML. Paragraph 20 of the plaintiff's contract further provides that it may be terminated by either party, at any time, without cause, upon 30 days' written notice. The endorsement on the final page of the contract purports to be the only agreement between NML and the plaintiff, and it states that NML shall not be liable to the District Agent in any manner except as specifically set forth in that endorsement. None of the exceptions apply here. The contract provides that it shall be governed by and construed in accordance with the laws of the State of Wisconsin. On May 29, 1990, Hodgkins served the plaintiff with notice that the contract would be terminated without cause in 30 days. A further notice of termination for cause dated June 1, 1990, was served upon the plaintiff, to be effective June 4, 1990.
NML has established by evidentiary proof that the relationship between Hodgkins and itself was that of an independent contractor (see, Pierce v. Northwestern Mut. Life Ins. Co., 444 F. Supp. 1098; Northwestern Mut. Life Ins. Co. v. Tone, 125 Conn. 183, 4 A.2d 640; Badger Furniture Co. v. Industrial Commn., 200 Wis. 127, 227 N.W. 288), and that Hodgkins was not acting on NML's behalf when it entered into the contract with the plaintiff. In light of the documentary evidence, summary judgment was properly granted, even though discovery was not complete (see, Chemical Bank v. PIC Motors Corp., 58 N.Y.2d 1023, 1026).
Furthermore, the court did not improvidently exercise its discretion in denying the plaintiff's motion for leave to serve an amended complaint, since it was not made until after the order granting summary judgment was issued and was therefore untimely. Mangano, P.J., Balletta, Santucci and Hart, JJ., concur.