In Thompson v. Wells Fargo & Co., 2015 WL 5730572, at *3-4 (E.D.N.Y.,2015), Judge Garaufis find an automobile finance company not vicariously liable for a tort committed by the repossession during the course of the repossession.
Defendant argues that it cannot be held liable for the alleged damage to Plaintiff’s home because “[a]s a matter of law, Wells Fargo is not responsible for the actions of LI Recovery, and cannot be held liable for any damage allegedly caused during the attempted repossession.” (Def.’s Mem. of Law in Support of Mot. for Summ. J. (Dkt.25–1) at 16.) The court agrees. New York courts have consistently held that principals are not liable for the negligent acts of independent contractors, “because the employer has no right to control the manner in which the work is to be done.” Gfeller. 846 N.Y.S.2d at 501. See, e.g., Kleeman v. Rheingold, 614 N.E.2d 712 (1993); Rosenberg v. Equitable Life Assur. Soc. of U.S., 595 N.E.2d 840 (1992); Sanabia v. Aguero–Borges, 986 N.Y.S.2d 553 (App.Div.2014). *4 In Gfeller, the Appellate Division found that an automobile repossession company was not liable as a matter of law for the actions of its driver, Russo, where the repossession company “presented evidence establishing that it had no control over the method or means by which Russo performed his work …; that Russo was paid an agreed-upon price per vehicle that was repossessed; and that [the repossession company] did not withhold Social Security or other taxes from Russo’s payments.” 846 N.Y.S.2d at 501. The court also considered that Russo “was free to seek employment from other sources and was not required to work exclusively” for the company, and that the parties described their relationship as that of an independent contractor. Id. Defendant has presented undisputed evidence establishing that it had no control over the means or methods used by either LI Recovery or its drivers in repossessing vehicles. Furthermore, the Agreement and sworn testimony of Kenneth Taylor, President of LI Recovery, clearly show that LI Recovery provided its own trucks and equipment, and was paid an agreed-upon price per repossessed vehicle. The evidence also shows that Defendant did not withhold Social Security or other taxes from the payments made to LI Recovery, and that LI Recovery was free to receive work from other sources. Plaintiff has not presented evidence to the contrary, and he does not dispute Defendant’s characterization of its relationship with LI Recovery as that of an independent contractor. Plaintiff states that “Wells Fargo control [sic] all methods by which it do [sic] business with all entities” (Pl.’s 56.1 ¶ 8), but this is contradicted by Plaintiff’s own admission that “[t]he relationship between Wells Fargo and LI Recovery was governed by the collateral recovery agreement …” (id. ¶ 4), and by his characterization of LI Recovery as an “independent contractor” (id. ¶ 3). Plaintiff has also failed to present any evidence that Defendant in any way controlled the methods by which LI Recovery operated. See Matsushita, 475 U.S. at 586 (party opposing summary judgment must do more than demonstrate “some metaphysical doubt as to the material facts”); Twin Labs, 900 F .2d at 568 (party opposing summary judgment may not rely solely on “conclusory allegations”). Plaintiff has therefore failed to raise a triable issue of fact regarding Defendant’s vicarious liability for the alleged tort.