175 Check Cashing Corp. v. Chubb Pacific Indemnity Group Et Al.
1983.NY.43722 464 N.Y.S.2D 118; 95 A.D.2D 701
Supreme Court of New York
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Order, Supreme Court, Bronx County (Alfred J. Callahan, J.), entered February 2, 1982, granting reargument to the extent of recalling and modifying an earlier order which had granted defendants cross motion for summary judgment dismissing plaintiffs second cause of action, affirmed, with costs. We are in agreement with the determination at Special Term that a factual issue exists as to the employment status of Grauso, which should not be resolved upon the conflicting affidavits adduced. Grauso claimed that he was not an employee and did not work for 175 Check Cashing Corp. This was supported by Levine, an employee of plaintiff, who likewise denied that Grauso was an employee or that he ever went inside the caged area where employees worked. The record does not reflect whether Levine was a "disinterested witness," as is characterized by the dissent. All that appears in the record is that he was a former employee of the plaintiff. His credibility and any interest or bias are matters for the trier of the facts. Levines account, however, was refuted by Joseph Lieto, an employee of American Express Company, who stated that he had dealings with plaintiff and, in particular with Grauso, who represented himself to be an employee and manager of the plaintiff. Lieto observed Grauso, at various times, inside the caged area and at the company safe, performing work tasks, like any other employee, dealing with instruments, money orders and checks. Although Grauso had apparently contemplated the purchase of a stock interest in the corporation, according to Lieto, Grauso indicated to him that he would continue as manager-employee. In support of the motion to renew, Lieto specifically stated, immediately preceding the sentence quoted by the dissent: "Leonard Grauso had stated to me that he was an employee of 175 Check Cashing Corp. and he had all the indicia of an employee including handling various funds and instruments, including having available to him and having access to the American Express money orders. Leonard Grauso represented himself to be an employee and was acting in the capacity as manager of the premises at the times that I was dealing with him at the premises. I was also advised by Grauso that he was going to be a purchaser of a stock interest in the 175 Check Cashing Corp. and he was to continue as a manager in the premises." Jose Matos, plaintiffs president, confirmed that Grauso had undertaken to manage the facility and would remain in that capacity after he became a stockholder. Nevertheless, according to Matos, plaintiff retained the right to govern and direct Grausos performance as an employee. Matos also stated that, inasmuch as Grauso was with plaintiff for a limited time, from June 22 to July 5, 1979, he was not employed long enough for a W-2 form to have been prepared, and any wages to have been paid to him were offset against the amount alleged to have been stolen. Under the circumstances, there are sufficient factual issues concerning the employment status of Grauso to warrant a trial, especially in view of the conflicting affidavits herein. Both sides have submitted carefully tailored affidavits, clearly designed to promote the respective positions which each has assumed. The credibility and interest of the parties, however, Levine and Grauso on the one hand, and Matos and Lieto on the other, is not a matter to be resolved summarily. The factual issue should properly await resolution at trial. In concluding otherwise, the dissent has credited one account offered by the insurer to the exclusion of the conflicting version by plaintiffs president, who claims that Grauso, as an employee, managed the operation while he was in Puerto Rico. While conceding that Grauso may have held a managerial role, our dissenting colleagues nevertheless conclude that he was not an employee [95 A.D.2d 701 Page 702]
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- Category: Law
- Published: 21 June 1983
- Publisher: LawApp Publishers
- Print Length: 10 Pages
- Language: English