On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket Nos. L-7276-08 and L-8433-08 (consolidated).
The opinion of the court was delivered by: Accurso J.S.C
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne, Reisner and Accurso.
The opinion of the court was delivered by ACCURSO J.S.C. (temporarily assigned).
This interlocutory appeal arises out of a car accident in which plaintiffs suffered catastrophic injuries. On leave granted, defendant Essex Surgery Center, L.L.C. (Essex) appeals from two partial summary judgment orders in favor of plaintiffs in these consolidated cases, one determining that defendant Lazar Berezinsky (Berezinsky) was Essex's agent, and the other that Berezinsky was liable for the accident in which plaintiffs were injured. Although we affirm the order on liability, we reverse the order on agency, concluding that whether Berezinsky was acting as Essex's agent at the time of the accident is a question for the jury.
While returning home from a shopping trip on Saturday, June 7, 2008, at about 12:30 in the afternoon, plaintiffs Felix and Judith Mangual's 1971 Chevy Nova had overheated, and they had pulled onto the shoulder of Route 280 in Orange. The day was clear and dry and the traffic very light. They were standing on the shoulder outside their disabled car when a Lincoln Town Car driven by Berezinsky slammed into them. The force of the impact propelled the Manguals' car into Mrs. Mangual and trapped Mr. Mangual between it and the Town Car. Mr. Mangual suffered a broken leg and anterior meniscus tears in both legs in the accident. Mrs. Mangual's injuries required that both her legs be amputated below the knee.
The evidence adduced on the cross-motions for partial summary judgment on agency filed by plaintiffs and Essex shows that at the time of the accident, Berezinsky was driving Galina Komarov and her daughter home after Mrs. Komarov had an out-patient procedure performed by Dr. Gary Gorodokin at non-party Roseland Ambulatory Surgery Center (Roseland). Berezinsky had been hired to drive Mrs. Komarov to and from her appointment by Abram Stekolshchik (referred to by the parties, and by us hereinafter, as Arkady). Arkady was employed by Essex.
Essex is an out-patient surgical center limited to pain management procedures, which in 2008 was open only on Tuesdays and Wednesdays. Essex employed a full-time administrator and director of nursing, a handful of clerical workers and a dispatcher, Arkady, but had few other full-time employees. The physicians who performed procedures at Essex were not paid by the surgical center but by their patients or their insurance providers. Essex paid the ten or fifteen nurses who worked on Tuesdays and Wednesdays on a per diem basis.
Essex is a limited liability company formed in 2005. Richard Lipsky, M.D., serves as its non-member unpaid manager. Dr. Lipsky's ex-wife and two daughters are the sole members of ELR Realty, L.L.C., the limited liability company that owns Essex. Dr. Lipsky's ex-wife and two daughters are also the sole members of a different limited liability company, LER Realty, L.L.C., which owns 35% of Roseland Med Realty, L.L.C., the L.L.C. that owns Roseland. The other 65% of Roseland Med Realty, L.L.C. is owned by Complete Surgical Project Management, L.L.C., of which Dr. Lipsky is a 50% member. Dr. Lipsky also serves as the manager for Roseland, which, like Essex, has a full-time administrator and director of nursing but few other W-2 employees. A number of the nurses who work on a per diem basis at Essex also work on the same basis at Roseland.
Dr. Lipsky testified at deposition that Essex provided transportation for all patients undergoing treatment at Essex. He explained that the high patient volume attendant to a pain management practice made patient transportation necessary in order to protect the day's schedule. In other words, the only way to insure that patients appeared on-time for their tightly scheduled appointments was for the facility to provide them transportation. Dr. Lipsky testified that the transportation was costly and was paid by Essex and not by the physicians using the facility. Arkady arranged for all patient transportation for Essex using a pool of approximately fifty drivers culled from limousine services who would drive for Essex on the side. Berezinsky was one of those drivers.
Berezinsky was a member of a limousine service cooperative in Ozone Park, New York called Inta-Boro Two-Way Radio Car (Inta-Boro). He testified at deposition that he owned the Town Car that he was driving on the day of the accident and that it was registered in his name in New York at Inta-Boro's location, which he considered his work address. Berezinsky has also owned a taxi medallion in New York City since 1988. Berezinsky's 1099-Miscellaneous Income Statements from Inta-Boro reveal that he received non-employee compensation of $59,387.80 in 2006; $51,406.46 in 2007; and $44,772.35 in 2008. For those same periods, Berezinsky received from Essex, $14,025; $18,290; and $13,910, respectively.
Berezinsky testified that Arkady began calling him in 2006 to transport patients to and from Essex. He had no contract or set schedule; he would simply drive for Essex when Arkady needed him. Berezinsky drove for Essex on his own behalf and not for Inta-Boro. Arkady would call him a day or so ahead of time with the name and address of the patient and the time of pick-up. Berezinsky picked up the patient in his own car and drove to Essex where Arkady would assign other trips. Berezinsky maintained and repaired his own car and chose the routes of travel. Essex paid him by the hour and not by the trip. Berezinsky testified that Essex paid him $35 an hour and did not reimburse him for gas or tolls. Dr. Lipsky, however, testified that Essex paid the drivers an additional $35 for gas on the days they worked. Berezinsky testified that Arkady would give him a check from Essex for the hours he worked at the end of each shift or the next time he drove. Essex issued Berezinsky a 1099-Miscellaneous Income Statement at the end of each year.
In 2007, Dr. Lipsky and others formed an L.L.C. to purchase Roseland and began renovating that out-patient surgical center. Roseland re-opened in early 2008 on a six-day a week schedule. Pain management procedures were performed at Roseland primarily on Tuesdays. Unlike at Essex, however, the procedures performed at Roseland extended beyond pain management to include orthopedics, general surgery, gastroenterology and urology. Although Dr. Lipsky testified that transportation for Roseland patients not undergoing pain management procedures was discouraged, it is undisputed that transportation was on occasion provided for such patients, like Mrs. Komarov.
Mrs. Komarov's gastroenterologist, Dr. Gorodokin, testified that the majority of his gastroenterology patients at Roseland availed themselves of the transportation service. He said that the service was a convenience to some patients, but that he chose Roseland because of the facility and would probably continue to use it were transportation services not provided.
Dr. Lipsky testified that the provision of transportation services was not an inducement to doctors to perform procedures at either Essex or Roseland because the other centers ...