Opinion
2017–07380 Index No. 5403/11
10-02-2019
Chihadeh ALKHABBAZ, Plaintiff-Appellant, v. Lon BEST, Defendant-Appellant, Jerrick Associates, Respondent, et al., Defendants.
Bruce S. Reznick, PC (Pollack, Pollack, Isaac & DeCicco, LLP, New York, N.Y. [Brian J. Isaac ], of counsel, White Plains), for plaintiff-appellant. William S. Boorstein, New York, N.Y. (Donald Walker of counsel), for defendant—appellant. Frankini & Harms, Garden City, N.Y. (Michael F. Palmeri of counsel, Syosset), for respondent.
Bruce S. Reznick, PC (Pollack, Pollack, Isaac & DeCicco, LLP, New York, N.Y. [Brian J. Isaac ], of counsel, White Plains), for plaintiff-appellant.
William S. Boorstein, New York, N.Y. (Donald Walker of counsel), for defendant—appellant.
Frankini & Harms, Garden City, N.Y. (Michael F. Palmeri of counsel, Syosset), for respondent.
WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, SHERI S. ROMAN, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER ORDERED that the appeal by the defendant Lon Best is dismissed, as that defendant is not aggrieved by the order appealed from (see CPLR 5511 ; Mixon v. TBV, Inc. , 76 A.D.3d 144, 156–157, 904 N.Y.S.2d 132 ); and it is further,
ORDERED that the order is reversed on the appeal by the plaintiff, on the law, and that branch of the motion of the defendant Jerrick Associates which was for summary judgment dismissing the complaint in this action insofar as asserted against it is denied; and it is further,
ORDERED that one bill of costs is awarded to the plaintiff, payable by the defendant Jerrick Associates.
On July 28, 2010, at approximately 2:30 p.m., a vehicle owned and operated by Lon Best collided with a vehicle operated by Youssef Attar and owned by Jack Attar, in which Chihadeh Alkhabbaz was a passenger. At the time of the accident, Best was employed by Jerrick Associates, a construction company. After the accident, Alkhabbaz commenced this action to recover damages for personal injuries against Best, Jack Attar, Youssef Attar, and Jerrick Associates. Youssef Attar commenced a separate action to recover damages for personal injuries against Best and Jerrick Associates. The two actions were subsequently joined for trial. Jerrick Associates then moved for summary judgment dismissing both complaints insofar as asserted against it. In the order on appeal, the Supreme Court granted that branch of the motion of Jerrick Associates which was for summary judgment dismissing the complaint in this action insofar as asserted against it.
Jerrick Associates failed to establish, prima facie, that it could not be held vicariously liable for the alleged negligence of Best, as the evidence submitted did not demonstrate, as a matter of law, that Best was acting outside the scope of his employment at the time the accident took place (see Camisa v. Rosen, 150 A.D.3d 809, 811, 54 N.Y.S.3d 111 ; Scott v. Lopez, 136 A.D.3d 885, 886, 25 N.Y.S.3d 298 ; cf. Xin Tang Wu v. Ng, 70 A.D.3d 818, 819, 894 N.Y.S.2d 141 ). "An act is considered to be within the scope of employment if it is performed while the employee is engaged generally in the business of his employer, or if his [or her] act may be reasonably said to be necessary or incidental to such employment" ( Davis v. Larhette, 39 A.D.3d 693, 694, 834 N.Y.S.2d 280 ; see Beres v. Terranera, 153 A.D.3d 483, 486, 60 N.Y.S.3d 207 ; Pinto v. Tenenbaum, 105 A.D.3d 930, 931, 963 N.Y.S.2d 699 ). Here, Best's deposition testimony, which was submitted by Jerrick Associates in support of its motion, raised triable issues of fact as to whether he ever used his vehicle in furtherance of work (see generally Lundberg v. State of New York, 25 N.Y.2d 467, 470–471, 306 N.Y.S.2d 947, 255 N.E.2d 177 ; Felberbaum v. Weinberger, 54 A.D.3d 717, 719, 863 N.Y.S.2d 747 ), and whether, at the time of the accident, he was traveling for purposes necessary or incidental to his employment (see Zwibel v. Midway Auto. Group, 127 A.D.3d 965, 966, 7 N.Y.S.3d 377 ; Ammirati v. Arias, 111 A.D.3d 771, 772, 976 N.Y.S.2d 102 ).
The failure of Jerrick Associates to make the requisite prima facie showing warranted the denial of its motion, regardless of the sufficiency of the opposing papers (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ; Winegrad v. New York Univ. Med. Ctr. , 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ). Accordingly, the Supreme Court should have denied that branch of the motion of Jerrick Associates which was for summary judgment dismissing the complaint in this action insofar as asserted against it.
MASTRO, J.P., BALKIN, ROMAN and CONNOLLY, JJ., concur.