Opinion
April 22, 1996
Appeal from the Supreme Court, Kings County (Hurowitz, J., Huttner, J.).
Ordered that the orders are affirmed insofar as appealed from, with one bill of costs.
The plaintiff commenced this action to recover damages for personal injuries, alleging that he was struck by a truck registered to the defendant Bienvenido Rossi and operated by the defendant Edwin Rosado. At the time of the accident, Rosado was allegedly delivering meat for the defendant Melba Utica Packing Co., Inc. (hereinafter Melba). Melba made two motions for summary judgment, which were denied. We affirm. A question of fact exists as to whether Rosado was an employee of Melba at the time of the alleged accident, thereby rendering Melba potentially liable for damages pursuant to the doctrine of respondeat superior, or whether Rosado was an independent contractor ( see, Carrion v Orbit Messenger, 82 N.Y.2d 742; Bratt v. Midland Asphalt Corp., 8 N.Y.2d 963; Stevens v. Spec, Inc., 224 A.D.2d 811; Shapiro v Robinson, 102 A.D.2d 822, affd 63 N.Y.2d 896). Further, if Rosado was an employee of Melba, questions of fact exist as to whether Melba was negligent in its hiring of Rosado ( see, Detone v Bullit Courier Serv., 140 A.D.2d 278; Stevens v. Lankard, 31 A.D.2d 602, affd 25 N.Y.2d 640) and whether Rosado was acting within the scope of his employment at the time that the accident allegedly occurred ( see, Riviello v. Waldron, 47 N.Y.2d 297; Loucks v. Community Home Care Servs., 209 A.D.2d 484). Rosenblatt, J.P., O'Brien, Ritter and Goldstein, JJ., concur.