Opinion
September 12, 1989
Appeal from the Supreme Court, New York County (David B. Saxe, J.).
It is not clear from the decision of the IAS court dated March 10, 1988, or the order filed by it on May 16, 1988, whether the court intended to grant summary judgment or judgment by way of default upon respondent's counterclaim for the collection of unpaid workers' compensation policy premiums and other relief. As a matter of practice summary judgment under CPLR 3212 (a) would not lie, because issue had not been joined on the counterclaim, properly treated by the court as a complaint (Edelman v Edelman, 88 Misc.2d 156, 159). But in either event, this aspect of the order permitting accelerated judgment was erroneous. Considered as a whole, the record here, including petitioner's affidavit read as a petition (see, CPLR 2001) in support of its order to show cause, reveals a clear issue of fact as to whether the limousine drivers who utilize petitioner's radio dispatch service are independent contractors or employees (Commissioners of State Ins. Fund v. Lindenhurst Green White Corp., 101 A.D.2d 730). This question, involving the entire nature and character of the drivers' work, is not susceptible of summary determination (Matter of Gordon v. New York Life Ins. Co., 300 N.Y. 652). We do not read our decision in Commissioners of State Ins. Fund v Rivington Farm Dairy ( 16 A.D.2d 58) to eliminate the need for a fact-finding hearing herein, because in that case the record included a copy of the "lease" in effect between the respondent dairy and its milk route drivers, permitting the determination of the legal status of those drivers as a matter of law. In the case before us we are satisfied that a trial of the basic issue is required.
We have granted reargument herein on respondent's motion to the extent of dismissing the petitioner's application to enjoin cancellation of the workers' compensation policy, petitioner having conceded on reargument that it no longer presses its claim for such relief.
Concur — Carro, J.P., Milonas, Wallach, Smith and Rubin, JJ.