Murphy, P. J., dissents in a memorandum as follows: I dissent and would affirm. At issue is whether on this record a triable issue of fact is presented whether the Court should honor the contractual relation between defendant Frank Henry and defendant Orbit Messenger, Inc. (see, Bermudez v Ruiz, 185 AD2d 212; Bratt v Midland Asphalt Corp., 8 NY2d 963), or deem Henry an employee of Orbit, which would then be potentially liable under the doctrine of respondeat superior.
Both Bermudez and Bratt, which also involved the status of a truck driver involved in an accident, hold that whether the owner-operator of the vehicle is an employee or an independent contractor is a factual question on the evidence in those cases.
I do not believe that there is or should be a rule that every case presenting this issue must necessarily be determined by the trier of fact. Such a rule would place an unjustifiable burden on small businesses which contract out delivery services, for the effect of such a rule is presumptively to invalidate such contracting out. The cost of litigation is thus imposed on the enterprise, regardless of how unequivocal the evidence may be, without any possibility of summary judgment. The enterprise must either contribute to the settlement or bear the cost of a trial.
On this record, I agree with the motion court’s analysis and conclusion that defendant Frank Henry is an independent contractor as a matter of law. Henry owned, insured, and maintained the truck” at his own cost. He determined the routing and timing of delivery and was free to perform work for other entities, though he chose not to. Henry was paid 57% of the billings by Orbit, which also provided bookkeeping services. Orbit also provided workers’ compensation coverage for Henry and provided him with a payroll check cashing card. Orbit provided Henry with a form 1099, not a W-2; and no payroll deductions were made from Henry’s receipts. Henry was required to pay taxes for himself and any employees. He received no vacation or other benefits.
There is no allegation here that defendant Henry did not carry adequate insurance, as he was contractually obligated to do. I see no public policy or other justification for the rule of Bermudez on this record.
*369A better rule is stated in Shapiro v Robinson (102 AD2d 822, affd 63 NY2d 896). In Shapiro, a motorist sued a construction company for damages resulting from an accident with a tractor-trailer truck. The construction company had engaged the driver of the truck as an independent contractor. The Second Department reversed the denial of the construction company’s motion for summary judgment, and held that there was no showing that the construction company reserved a right of control in respect of the manner in which the work was to be performed, citing Matter of Morton (284 NY 167, 172).
The reasoning of Shapiro requires dismissal here as to Orbit. There is no showing in this record whatsoever that Orbit reserved a right of control over Henry. The time and manner of delivery was within his sole discretion. Requiring a trial here is an injustice and a waste of judicial resources.