Opinion
5500 Index 151818/15
01-23-2018
Betty SEBROW, Plaintiff–Appellant, v. JOE & MIKE TAXI, INC., Defendant–Respondent, Md N. Mia, etc., Defendant.
The Berkman Law Office LLC, Brooklyn (Brian Lance Gotlieb of counsel), for appellant. Thomas Torto, New York (Jason Levine of counsel), for respondent.
The Berkman Law Office LLC, Brooklyn (Brian Lance Gotlieb of counsel), for appellant.
Thomas Torto, New York (Jason Levine of counsel), for respondent.
Sweeny, J.P., Richter, Andrias, Webber, Oing, JJ.
Order, Supreme Court, New York County (Geoffrey D. Wright, J.), entered August 22, 2016, which granted defendant Joe & Mike Taxi, Inc.'s (J & M) motion for summary judgment dismissing the complaint and all cross claims as against it, unanimously affirmed, without costs.
Plaintiff alleges that she hailed a taxicab owned by J & M and operated by codefendant Mohammed N. Mia, and that Mia made anti-Semitic remarks to her, threatened her safety, and misled police officers as to whether she had paid the fare.
J & M made a prima facie showing that Mia was not its employee, but rather was an independent contractor, and that it therefore could not be held liable for Mia's acts (see Chainani v. Board of Educ. of City of N.Y., 87 N.Y.2d 370, 380–381, 639 N.Y.S.2d 971, 663 N.E.2d 283 [1995] ). In particular, J & M showed that it leased the taxi to Mia, who received no salary, retained his own fares, and had the sole responsibility and control over the manner and means of providing taxi services (see Bynog v. Cipriani Group, 1 N.Y.3d 193, 198, 770 N.Y.S.2d 692, 802 N.E.2d 1090 [2003] ; see also Marino v. Vega, 12 A.D.3d 329, 330, 786 N.Y.S.2d 17 [1st Dept. 2004] ; Irrutia v. Terrero, 227 A.D.2d 380, 381, 642 N.Y.S.2d 328 [2d Dept. 1996] ).
Plaintiff's speculation that discovery could lead to relevant evidence was insufficient to overcome J & M's prima facie showing (see Zuckerman v. City of New York, 49 N.Y.2d 557, 563–564, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ).
Plaintiff failed to preserve her contention that the daily taxi lease agreement submitted in support of J & M's motion expired by its terms before the incident.
There is no basis to hold J & M vicariously liable under Vehicle and Traffic Law § 388 for Mia's intentional actions (see Gomez v. Singh, 309 A.D.2d 620, 621, 767 N.Y.S.2d 67 [1st Dept. 2003] ).