
    Joseph Lobczowski, Respondent, v United Frontier Mutual Insurance Company, Appellant, et al., Defendant.
    [749 NYS2d 917]
   Appeal from an order of Supreme Court, Niagara County (Fricano, J.), entered August 13, 2001, which, inter alia, denied the cross motion of defendant United Frontier Mutual Insurance Company for summary judgment.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed with costs.

Memorandum: Plaintiff commenced this action seeking a declaration that defendant United Frontier Mutual Insurance Company (United) must defend and indemnify defendant Philip K. Birdsall, doing business as Phil’s Home Improvement Co. (Birdsall), in the underlying personal injury action brought by plaintiff against Birdsall. Supreme Court properly denied plaintiff’s motion and United’s cross motion for summary judgment. There is a triable issue of fact concerning whether at the time of the accident plaintiff was an employee of Birdsall, thus excluding his underlying personal injury action from coverage under United’s policy, or an independent contractor, thus requiring United to defend and indemnify Birdsall with respect to plaintiff’s personal injury action (see Erny v Distribution Sys. of Am,., 283 AD2d 391; Lane v Lyons, 277 AD2d 428; Mason v Spendiff, 238 AD2d 780, 781-782). Present— Pigott, Jr., P.J., Pine, Wisner, Scudder and Kehoe, JJ.  