Opinion
4830, 153272/14.
10-31-2017
Keri O'CONNELL, Plaintiff–Appellant, v. MACY'S CORPORATE SERVICES, INC., etc., et al., Defendants–Respondents.
Robert Giusti & Associates, PLLC, Bayside (Robert Giusti of counsel), for appellant. Lester Schwab Katz & Dwyer, LLP, New York (Daniel S. Kotler of counsel), for respondents.
Robert Giusti & Associates, PLLC, Bayside (Robert Giusti of counsel), for appellant.
Lester Schwab Katz & Dwyer, LLP, New York (Daniel S. Kotler of counsel), for respondents.
Order, Supreme Court, New York County (Robert D. Kalish, J.), entered September 14, 2016, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Defendants established prima facie that they cannot be held liable for the injuries that plaintiff allegedly sustained while participating as a volunteer in the Macy's Thanksgiving Day parade, by submitting a copy of a portion of plaintiff's electronic application to be a participant that contained a release from liability showing her name typed at the bottom and a check mark in the box indicating her agreement to the terms of the release.
Plaintiff's affidavit in opposition, at most, created only a feigned issue of fact since it contained a version of the facts that conflicted with her earlier deposition testimony (see e.g. Estate of Mirjani v. DeVito, 135 A.D.3d 616, 24 N.Y.S.3d 263 [1st Dept.2016] ).
Plaintiff unpersuasively argues that the release does not apply because defendant Stanton, whose vehicle struck plaintiff, was not an employee of Macy's. As a volunteer in the parade, Stanton was an agent of Macy's and covered by the release (see e.g., 5015 Art Fin. Ptnrs, LLC v. Christine's Inc., 58 A.D.3d 469, 471, 870 N.Y.S.2d 331 [1st Dept.2009] [a principal-agent relationship may be established by evidence of the consent of one person to allow another to act on his or her behalf and subject to his or her control, and consent by the other so to act" even where the agent is acting as a volunteer] [internal quotations and citations omitted] ).We have considered plaintiff's remaining arguments and find them unavailing.
RICHTER, J.P., WEBBER, KERN, MOULTON, JJ., concur.