Zlateff v. Contour Erection & Siding Systems, Inc. , 666 N.Y.S.2d 67 ( 1997 )

—Order and judgment unanimously reversed on the law without costs, motions denied and complaint reinstated against Contour Erection & Siding Systems, Inc., Christopher Eberle, Linda Monforte and Erie Shores, Inc. Memorandum: Supreme Court erred in granting the motions of defendants Contour Erection & Siding Systems, Inc. (Contour), Christopher Eberle, Linda Monforte and Erie Shores, Inc. (Erie Shores), for summary judgment dismissing the complaint against them.

Daniel Zlateff (plaintiff), president and sole shareholder of Z-Boing, Inc., whs injured while bungee jumping during an exhibition jump in the parking lot of Calico Jack’s Restaurant on July 4, 1992. Contour provided the crane used in the bungee-jumping event, which was planned by plaintiff, Monforte and Eberle. Monforte owned the beachfront lot on which the bungee jumping took place and on which Calico Jack’s Restaurant was situated. Monforte is also the president, owner and manager of Erie Shores, which does business as Calico Jack’s Restaurant and to which she had leased the beachfront property. Eberle is the president of Contour and owns one half of its shares.

Upon our review of the record, we conclude that there are material issues of fact that preclude summary judgment. Those issues include whether a joint venture existed and, if so, the identity and capacity of the joint venturers, the availability of workers’ compensation coverage and whether Zlateff was an employee or was acting independently to further his own business. (Appeal from Order and Judgment of Supreme Court, Erie County, Glownia, J.—Summary Judgment.) Present— Pine, J. P., Hayes, Wisner, Boehm and Fallon, JJ.