        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

681
CA 14-02229
PRESENT: SMITH, J.P., CENTRA, PERADOTTO, SCONIERS, AND WHALEN, JJ.


BUYER’S FIRST CHOICE, INC., DOING BUSINESS AS
2.5% REAL ESTATE DIRECT, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

JOANNE SIMME, ALSO KNOWN AS JOANNE SIMME-GOOD,
DOING BUSINESS AS GOOD CHOICE,
DEFENDANT-RESPONDENT.


JED CARROL, DEPEW, FOR PLAINTIFF-APPELLANT.

WEISS & DETIG, GRAND ISLAND (NORTON T. LOWE OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from an order of the Erie County Court (Thomas P.
Franczyk, J.), dated September 24, 2013. The order, among other
things, denied plaintiff’s motion for summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
defendant’s alleged breach of her duty of loyalty to plaintiff during
the time that she sold real estate on plaintiff’s behalf. On a prior
appeal, we affirmed an order that denied plaintiff’s motion to dismiss
the counterclaim in defendant’s second amended answer for failure to
state a cause of action (Buyer’s First Choice, Inc. v Simme, 107 AD3d
1384). We conclude on this appeal that County Court properly denied
plaintiff’s subsequent motion for summary judgment dismissing the same
counterclaim to the extent that it alleges plaintiff’s violation of
Labor Law article 6, inasmuch as plaintiff failed to meet its burden
of establishing as a matter of law that defendant was not an employee
entitled to the protection of the statute. “ ‘Employee’ is defined in
Labor Law article 6 as ‘any person employed for hire by an employer in
any employment’ ” (Akgul v Prime Time Transp., 293 AD2d 631, 633,
quoting Labor Law § 190 [2]). While we agree with plaintiff that the
definition of “employee” excludes independent contractors (see
Hernandez v Chefs Diet Delivery, LLC, 81 AD3d 596, 597; Akgul, 293
AD2d at 633), we reject plaintiff’s further contention that it
established defendant’s status as an independent contractor as a
matter of law. Rather, as the court properly determined, here “the
nature of the [parties’] relationship is fact sensitive and . . .
presents a question for the trier of fact” (Hernandez, 81 AD3d at
                           -2-                  681
                                          CA 14-02229

598).




Entered:   June 19, 2015         Frances E. Cafarell
                                 Clerk of the Court
