Opinion
14299/06.
Decided June 27, 2008.
Defendants move seeking an Order granting defendant CHEE TRUCKING INC. (Chee) summary judgment over and against plaintiff. Defendants aver that insofar as defendant YUANG PING (Ping) was an independent contractor, Chee is not vicariously liable for his acts, in particular those acts alleged to have caused plaintiff's accident. In addition, defendants argue that Chee is entitled to summary judgment insofar the accident herein did not occur while Ping was using or operating the vehicle leased by Chee, so as to make Chee liable under VTL § 388. Plaintiff opposes the instant motion arguing that Chee as lessee is vicariously liable under VTL § 388 for the acts of Ping insofar as the accident herein did in fact occur while Ping was using the vehicle leased by Chee. Moreover, plaintiff avers that questions fact with regard to whether Ping was Chee's independent contractor preclude summary judgment.
For the reasons that follow hereinafter, defendants' motion is hereby denied.
The amended complaint alleges the following. On October 27, 2005, plaintiff a mechanic was injured while working on a truck owned by the defendants. On the date herein, Ping was employed by Chee and was acting within the scope of Chee's employment. Defendants were negligent in the operation and control of the truck and said negligence caused the accident herein and the injuries stemming therefrom.
In support of the instant motion, defendants submit portions of plaintiff's deposition transcript, wherein he testified, in pertinent part, as follows. On October 27, 2005, plaintiff was involved in an accident while employed at the South Kearny Truck Stop. Plaintiff was employed as a mechanic, whose job entailed the repair of trucks. On the date herein a man came to the shop complaining of a battery issue with his Volvo truck. Plaintiff proceeded to address the issue by opening the hood of the truck and inspecting the alternator terminals. The man who brought the truck was seated behind the wheel of the truck as plaintiff worked on the truck. Prior to working on the truck, plaintiff instructed the man to shut the engine off. As he worked on the truck with the engine off, the engine suddenly started and plaintiff's fingers came into contact with the alternator band. Plaintiff's fingers were amputated as a result. Plaintiff never asked that the truck be turned on as he worked.
Defendants submit portions of Ping's deposition transcript, wherein he testified, in pertinent part, as follows. On October 27, 2005, he was involved in incident while his truck was being repaired. Ping was exclusively employed by Chee, and had been so employed since August 2005. He was a driver, whose job entailed delivering containers using his own truck. He worked for Chee Monday through Friday and was paid by check based upon the deliveries he made. Ping owned the truck herein, which was a 1996 Volvo that he purchased and insured. He was not reimbursed for any repairs he made to the same. Ping stored his truck at a lot in South Kearney, NJ. In terms of his job and assignment of work, Ping would receive orders nightly. Said orders would indicate which containers he would be picking up and where they were being delivered to. Thereafter, Ping would pick up his truck from the lot and report directly to the port to pick up the designated container. Ping would make the delivery and return the container to the port. On the date of the accident herein, Ping picked up his truck and was in route to drop off a container. His battery indicator light came on. Ping called his boss, Mr. Chee, of Chee, who swapped batteries with Ping. Thereafter, Ping went to a repair shop. Upon arriving thereat and speaking to the manager, plaintiff installed four batteries into Ping's truck. Thereafter, the repair shop manager joined Ping inside his truck. Plaintiff signaled Ping to start the truck. The truck did not start and the rapeir manager stepped on the gas pedal. Ping reentered a code required to start the truck and the truck started. Thereafter he saw plaintiff, who was holding his hand while it bled.
Defendants submit portions of Heong Chee's (Heong) deposition transcript, wherein he testified, in pertinent part, as follows. Heong is the owner of Chee. He is the sole officer and sole shareholder. Chee is in the business of transporting cargo from the harbor terminal to other locations. In 2005, Chee owned one truck and leased several others. Chee also employed drivers to transport cargo. All trucks were stored in New Jersey, and with the exception of the truck owned by Chee, fees for storage were borne by the drivers. The drivers were paid by check, no taxes were withheld and they would obtain their assignments via fax on the night prior to the delivery at issue. The documents faxed to the driver would indicate where to pick up and drop off a particular delivery. In 2005, Chee leased a truck from Ping. Ping worked with Hoeng at Chee. All repairs under the lease were borne by Ping. Ping was the registered owner of the truck and didn't use the truck for any other business except Chee's.
In opposition to the instant motion, plaintiff submit's Hoeng, Ping and plaintiff's deposition transcripts in their entirety, including the pertinent parts submitted by defendants. The remainder of said transcripts are not pertinent to the Court's decision.
Plaintiff submits a copy of a document titled lease agreement. The same is unsworn, uncertified, and no foundation for its admission is laid.
Summary Judgment
The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law. Alvarez v. Prospect Hospital, 68 NY2d 320 (1986); Zuckerman v. City of New York, 49 NY2d 557 (1980). There is no requirement that the proof for said motion be submitted in affidavit form, rather, the requirement is that the evidence proffered be in admissible form. Muniz v. Bacchus, 282 AD2d 387 (1st Dept. 2001). Accordingly, affirmations from attorneys having no personal knowledge of the facts are not evidence and offer nothing more than hearsay. Reuben Israelson v. Sidney Rubin, 20 AD2d 668 (2nd Dept. 1964); Erin Federico v. City of Mechanicville, 141 AD2d 1002 (3rd Dept. 1988); Harry L. Cohen v. Genesee Supply Co., 7 AD2d 886 (4th Dept. 1959). Consequently any such submissions are inadmissible and cannot be the basis for creating an issue of fact sufficient to preclude summary judgment. Johnson v. Phillips, 161 AD2d 269 (1st Dept. 1999); Rue v. Stokes, 191 AD2d 245 (1st Dept. 1993). Similarly, unsworn accident reports are inadmissible and cannot be considered by the court. Id.; Reed v. New York Coty Transit Authority, 299 AD2d 330 (2nd Dept. 2002); Hegy v. Coller, 262 AD2d 606 (2nd Dept. 1999).
Once movant meets his initial burden, the burden shifts to the opponent, who must then produce sufficient evidence, also in admissible form, to establish the existence of a triable issue of fact. Zuckerman v. City of New York, 49 NY2d 557 (1980). The burden, however, always remains where it began, with the movant on the issue. Hence, "if the evidence on the issue is evenly balanced, the party that bears the burden must loose." Director Office of Workers Compensation Programs v. Greenwich Collieris, 512 U.S. 267 (1994); 300 East 34th Street Co. V. Habeeb, 248 AD2d 50 (1st Dept. 1997).
It is worth noting, however, that while the movant's burden to proffer evidence in admissible form is absolute, the opponent's burden is not. On this issue the Court of Appeals has stated
[t]o obtain summary judgment it is necessary that the movant establish his cause of action or defense sufficiently to warrant the court as a matter of law in directing summary judgment' in his favor, and he must do so by the tender of evidentiary proof in admissible form. On the other hand, to defeat a motion for summary judgment the opposing party must show facts sufficient to require a trial of any issue of fact.' Normally if the opponent is to succeed in defeating a summary judgment motion, he too, must make his showing by producing evidentiary proof in admissible form. The rule with respect to defeating a motion for summary judgment, however, is more flexible, for the opposing party, as contrasted with the movant, may be permitted to demonstrate acceptable excuse for his failure to meet strict requirement of tender in admissible form. Whether the excuse offered will be acceptable must depend on the circumstances in the particular case. (Internal citations omitted).Friends of Animals v. Associated Fur Manufacturers, Inc., 46 NY2d 1065, 1067-1068 (1979). Accordingly, generally, the opponent of a motion for summary judgment seeking to have court consider inadmissible evidence must proffer an excuse for proffering the inadmissible evidence in inadmissible form. Johnson v. Phillips, 161 AD2d 269 (1st Dept. 1999). Additionally, while evidence inadmissible when the motion is made and inadmissible when the case is tried, is insufficient to raise an issue of a fact precluding summary judgment; inadmissible evidence, whose inadmissability has been excused and which may likely be admissible at trial, may be considered. Phillips v. Joseph Kantor Company, 31 NY2d 307 (1972). In Phllips, for example, the court discussed that in lieu of affidavits from actual witnesses, detailing the substance of their testimony, affidavits listing witnesses' names, the substance of their testimony, and how said witnesses acquired their knowledge, could be considered and could raise an issue of fact sufficient to defeat summary judgment. Id. Similarly, in Zuckerman v. City of New York, 49 NY2d 557 (1980), the court discounted an attorney affirmation as speculative, in that said attorney lacked no personal knowledge of the facts he was proffering. Id. The court, however, in recognizing that inadmissible evidence could be used to preclude summary judgment, stated that if said attorney had personal knowledge of a witnesses testimony and that witnesses' testimony created an issue fact, said affirmation would suffice to defeat summary judgment. Id.; See, Indig v. Finkelstein, 23 NY2d 728 (1968); Graso v. Angerami, 79 NY2d 813 (1991).
When deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility. As the Court stated in Knepka v. Talman, 278 AD2d 811 (4th Dept. 2000):
Supreme Court erred in resolving issues of credibility in granting defendants' motion for summary judgment dismissing the complaint (see, Mickelson v. Babcok, 190 AD2d 1037, 593 NYS2d 657; see generally, Black v. Chittenden, 69 NY2d 665, 511 NYS2d 833, 503 NE2d 1370; Capelin Assocs. v. Globe Mfg. Corp., 34 NY2d 338, 34,1 357 NYS2d 478, 313 NE2d 776). Any inconsistencies between the deposition testimony of plaintiffs and their affidavits submitted in opposition to the motion present issues for trial(see, Schoen v. Rochester Gas Elec., 242 AD2d 928, 665 NYS2d 372; Mickelson v. Babcock, supra).
See also, Yaziciyan v. Blancato, 267 AD2d 152 (1st Dept. 1999); Perez v. Bronx Park Associates, 285 AD2d 402 (1st Dept. 2001); Glick Dullock v. Tri-Pac Export Corp., 22 NY2d 439 (1968); Singh v. Kolcaj Realty Corp., 283 AD2d 350 (1st Dept. 2001).
Accordingly, the Court's function when determining a motion for summary judgment is issue finding and not issue determination. Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395 (1957). Lastly, because summary judgment is such a drastic remedy, it should never be granted when there is any doubt as to the existence of a triable issue of fact. Rotuba Extruders v. Ceppos, 46 NY2d 223 (1978). When the existence of an issue of fact is even debatable, summary judgment should be denied. Stone v. Goodson, 8 NY2d 167 (1960). It is well established that inadmissable hearsay is insufficient to raise any triable issues of fact sufficient to defeat summary judgment. Schwartz v. Nevatel Communications Corp., 778 NY2d 308 (2nd Dept. 2004); Zuckerman v. City of New York, 49 NY2d 557 (1980).
Self serving affidavits, meaning those which contradict previous deposition testimony, will not be considered by the Court in deciding summary judgment and cannot raise a triable issue of fact sufficient to defeat summary judgment. Lupinsky v. Windham Construction Corp., 293 AD2d 317 (1st Dept 2002); Joe v. Orbit Industries, Ltd., 269 AD2d 121 (1st Dept. 2000); Kistoo v. City of New York, 195 AD2d 403 (1st Dept. 1993).
A defendant seeking summary judgment must establish prima facie entitlement to such relief as a matter of law by affirmatively, with evidence demonstrating the merits of the claim or defense, and not merely by pointing to gaps in plaintiff's proof. Mondello v. DiStefano , 16 AD3d 637 (2nd Dept. 2005); Peskin v. New York City Transit Authority, 304 AD2d 634 (2nd Dept. 2003).
Independent Contractors
It is well settled that one who hires an independent contractor to perform work or provide services is not liable for said contractor's negligent acts. Kleenman v. Rheingold, 81 NY2d 270 (1993); Rosenberg v. Equitable Life Assurance Society of the United States, 79 NY2d 663 (1992); Feliberty v. Damon, 72 NY2d 112 (1988); Goodwin v. Comcast Corporation , 42 AD3d 322 (1st Dept. 2007); (Employer not liable for acts of independent contractor where the same did not control the work being performed and where owner retained nothing more than general supervisory powers); Adams v. Hilton Hotels, Inc., 15 AD3d 175 (1st Dept. 2004); Saini v. Tonju Associates, 299 AD2d 244 (1st Dept. 2002); Stagno v. 143-50 Hoover Owners Corp. , 48 AD3d 548 (2nd Dept. 2008) (Owner of premises not liable for acts of contractor hired to perform work in and around the premises, when the owner did not supervise or control the work of the independent contractor.); Mercado v. Slope Associates, 246 AD2d 581 (2nd Dept. 1998) (Owner of premises not liable for acts of contractor hired to perform work in and around the premises, when the owner did not supervise or control the work of the independent contractor.); Zedda v. Albert, 233 AD2d 497 (2nd Dept. 1996) (Owner not liable for acts of an independent contractor where the owner did not give the independent contractor direction or instruction.). The basis for the rule is that one who hires an independent contractor does not have the right to control the manner in which the work is done. Id. This relationship is to be distinguished from a master servant relationship where the master, insofar as he retains control over the servant, is vicariously liable for the acts of the servant. Kleenman v. Rheingold, 81 NY2d 270 (1993); Goodwin v. Comcast Corporation , 42 AD3d 322 (1st Dept. 2007); Melbourne v. New York Life Insurance Co., 271 AD2d 296 (1st Dept. 2000).
There is of course, an exception to the general rule. It is well settled that he who hires an independent contractor is liable for said contractor's acts when the contractor is hired to perform work that the employer has a duty to perform and said duty is nondelegable. Kleenman v. Rheingold, 81 NY2d 270 (1993); Rosenberg v. Equitable Life Assurance Society of the United States, 79 NY2d 663 (1992); Feliberty v. Damon, 72 NY2d 112 (1988). A duty is nondelegable when "the responsibility is so important to the community that the employer should not be permitted to transfer it to another." Kleenman v. Rheingold, 81 NY2d 270, 275 (1993). The most often discussed non-delegable duties are those duties imposed by statute or the common law and where the work at issue is inherently dangerous. Kleenman v. Rheingold, 81 NY2d 270 (1993) (Court held that service of process was a duty imposed upon an attorney and could not be delegated to a third-party and as such attorney who employed a process server was vicariously liable for his negligence in effectuating process.); Rosenberg v. Equitable Life Assurance Society of the United States, 79 NY2d 663 (1992) (Court held that the administration of an EKG was not an inherently dangerous event and as such insurance company who delegated the same to a doctor was not liable for the doctor's negligence.); Feliberty v. Damon, 72 NY2d 112 (1988) (Court held that insured who hired counsel to defend its insured was not vicariously liable for counsel's negligence in the representation provided to insured. Delegation of defense to counsel not a nondelegable duty.). Work is inherently dangerous and thus its delegation does not absolve an employer of liability for an injury sustained by the acts of an independent contractor if the work involves a special risk of harm to others, inherent in the nature of the work itself. Rosenberg v. Equitable Life Assurance Society of the United States, 79 NY2d 663 (1992). Liability for an injury arising from the delegation of inherently dangerous work also requires that the employer have actual or constructive knowledge of the risks involved prior to employing the independent contractor. Id. It has often been stated that he who hires an independent contractor is liable if the employer is negligent in selecting the contractor or in instructing or supervising the same. Kleenman v. Rheingold, 81 NY2d 270 (1993); Adams v. Hilton Hotels, Inc., 15 AD3d 175 (1st Dept. 2004). However, insofar as under these circumstances the employer is liable for his own acts, it is not really an exception to the rule. . Kleenman v. Rheingold, 81 NY2d 270 (1993)
Whether a party is an independent contractor as opposed to an employee often turns on whether the employer exercised control over the work performed by the contractor. Goodwin v. Comcast Corporation , 42 AD3d 322 (1st Dept. 2007); Leetoyzer v. New York Life Insurance Co., 271 AD2d 296 (1st Dept. 2000; Gfeller v. Russo, 45 A.D3d 1301 (4th Dept. 2007); Harjes v. Parisio , 1 AD3d 680 (3rd Dept. 2003); Greene Osterhoudt, 251 AD2d 1998). Other factors to consider in determining whether a person is an independent contractor is the extent to which the employer is involved in the work being form, namely whether the same furnishes tools, and equipment, whether taxes are withheld and how the contractor is paid. Id. The mere retention of general supervisory powers by the employer over the employee does not mean that the relationship is not one of employer/independent contractor, and thus is insufficient to impose liability upon an employer for the acts of the independent contractor. Goodwin v. Comcast Corporation , 42 AD3d 322 (1st Dept. 2007); Leetoyzer v. New York Life Insurance Co., 271 AD2d 296 (1st Dept. 2000); Santella v. Andrews, 266 AD2d 62 (1st Dept. 1999).
Vicarious Liability of Owners of Motor Vehicles
Vehicle and Traffic Law § 388(1) states, in pertinent part, that
[e]very owner of a vehicle used or operated in this state shall be liable and responsible for death or injuries to person or property resulting from negligence in the use or operation of such vehicle, in the business of such owner or otherwise, by any person using or operating the same with the permission, express or implied, of such owner. Whenever any vehicles as hereinafter defined shall be used in combination with one another, by attachment or tow, the person using or operating any one vehicle shall, for the purposes of this section, be deemed to be using or operating each vehicle in the combination, and the owners thereof shall be jointly and severally liable hereunder.
Thus, without exception, pursuant to the above mentioned statute, an owner of a motor vehicle is vicariously liable for a motor vehicle accident, caused by the use of his vehicle, when said vehicle is being operated with the owner's consent. Liability under the statute is purely vicarious and as such, does not turn on any fault of the owner. Naso v. Lafata, 4 NY2d 585 (1958)
Once a ownership of a vehicle is established permission or consent to use the vehicle, either express or implied, is rebuttably presumed. Murdza v. Zimmerman, 99 NY2d 375 (2003); Leotta v. Plessinger, 8 NY2d 449 (1960); St. Andrassy v. Mooney, 262 NY 368 (1933). The presumption of consent and permission continues until substantial evidence negating consent is proffered. Id.; New York Central Mutual Fire Insurance Company v. Dukes, 14 AD3d 704 (2nd Dept. 2005). Whether the issue of consent can be decided as a matter of law or requires submission to a jury depends on the nature of the evidence rebutting the consent. Country-Wide Insurance Company v. National Railroad Passenger Corporation, 6 NY3d 172 (2006). The court in Country-Wide Insurance Company, stated that
[w]here the disavowals [regarding consent] are arguably suspect, as where there is evidence suggesting implausibility, collusion or implied permission, the issue of consent should go to the jury. . . whether summary judgment is warranted [on the issue of consent] depends on the strength and plausibility of the disavowals [by defendants], and whether they leave room for doubts that are best left for the jury.
Id. at 306-307. In Country-Wide Insurance Company, the court granted defendant summary judgment finding that defendant had rebutted permissive use of its vehicle when the disavowals were firm an unassailable. Id. The court further concluded that the lack of consent was further corroborated by contemporaneous accident report. Id. In St. Andrassy, the Court in discussing whether the issue of consent can be decided as a mater of law stated that summary judgment is inappropriate and the issue of consent is one for the jury
[i]f the evidence produced to show that no permission has been given has been contradicted or, because of improbability, interest, or weakness, may reasonably be disregarded by the jury, its weight lies with the jury.
St. Andrassy v. Mooney, 262 NY 372, 368 (1933). In St. Andrassy, the Court set a side a judgment in plaintiff's favor after concluding that defendant had proffered sufficient evidence to rebut the presumption of permissive use. Id. In that case, the uncontroverted evidence, namely denial by all witnesses that the operator of the vehicle had permission to use the same, demonstrated that defendant's vehicle was operated consent defendants' consent. Id.
In Nelson v. Ford Motor Credit Company , 41 AD3d 444 (2nd Dept. 2007), the court granted defendant summary judgment finding that the operator of the defendant's vehicle did not have consent to use the same. The court in that case, acknowledging that consent can either be express or implied and that consent can be inferred, nonetheless concluded that defendant submitted substantial evidence that the offending driver lacked express permission to use his vehicle and that there was an absence of evidence from which authority could be inferred. Id. The court in Berett v. McNulty, 27 NY2d 928 (1970) came to the same conclusion. In Adamson v. Evans, 283 AD2d 527 (2nd Dept. 2001), defendant overcame the presumption of consent when he submitted an affidavit and documentary evidence demonstrating that his car was stolen at the time of the accident alleged. In Bruno v. Privilegi, 148 AD2d 652 (2nd Dept. 1989), the court granted defendant summary judgment finding that he had overcome the presumption of permissive use when the uncontroverted evidence, namely affidavits and testimony, established that the driver of defendant's vehicle did not have permission to use the same. Id. The court also held that plaintiff failed to submit any evidence sufficient to raise an issue of fact as to permission. Id.
It is well settled that for purposes of operation and use, the terms listed within the statute, the vehicle need not be moving at the time of the accident alleged. Argentina v. Emery World Wide Delivery Corp., 93 NY2d 554 (1999); Elfeld v. Burkham Auto Renting Co., Inc., 299 NY 336 (1949); Eckert v. the G.B. Farrington Company, Inc., 262 A.D. 9 (4th Dept. 1941), Aff'd, 287 NY 714 (1942); Aranzullo v. Collins Packing Company, 18 AD2d 1068 (1st Dept. 1963); Cohn v. Nationwide Mutual Insurance Company, 286 AD2d 699 (2nd Dept. 2001); Bouchard v. Canadian Pacific, LTD, 267 AD2d 899 (3rd Dept. 1999); Guadagno v. H.S. Trucking, 29 AD2d 979 (2nd Dept. 1968); Fireman's Fund American Insurance Companies v. Olin of New York City, Inc., 84 Misc 2d 504 (Supreme Court, Nassau County 1975); Stole v. United States Steel Corporation, 34 Misc 2d 103 (Supreme Court New York County 1962). Thus, it has been held that an accident occurring while a vehicle is standing still and is being unloaded constitutes operation and use for purposes of liability under VTL § 388. Argentina v. Emery World Wide Delivery Corp., 93 NY2d 554 (1999) (Court held that owner of vehicle was vicariously liable for injury sustained by plaintiff when a plate fell upon him as a parked vehicle was being unloaded.); Stole v. United States Steel Corporation, 34 Misc 2d 103 (Supreme Court New York County 1962) (Court held that owner of vehicle vicariously liable for injury sustained by plaintiff, a pedestrian who tripped over a steel cable as the same was being unloaded from a parked vehicle). It has also been held that owner of a vehicle is vicariously liable for accident sustained by plaintiff while a vehicle is parked and being repaired. Eckert v. the G.B. Farrington Company, Inc., 262 A.D. 9 (4th Dept. 1941), Aff'd, 287 NY 714 (1942) (Court held that owner of vehicle was vicariously liable when plaintiff was injured as he worked on owner's vehicle as the same was parked on a highway and was impacted by another vehicle.). Our courts have also held that an owner of a vehicle is vicariously liable for an injury sustained through the use of a parked vehicle's door. Cohn v. Nationwide Mutual Insurance Company, 286 AD2d 699 (2nd Dept. 2001) (Court held that owner of vehicle was vicariously liable for injury caused as operator opened parked car's door impacting and injuring a passing bicyclist.); Guadagno v. H.S. Trucking, 29 AD2d 979 (2nd Dept. 1968) (Court held that owner of vehicle was vicariously liable for injury caused when a door suddenly opened striking the plaintiff); Fireman's Fund American Insurance Companies v. Olin of New York City, Inc., 84 Misc 2d 504 (Supreme Court, Nassau County 1975) (Court held that owner of vehicle was liable when operator of vehicle shut door thereby injuring plaintiff's finger.). It has also been held that an owner is vicariously liable when an operator of his vehicle negligently parks the same, leaves thereafter, and by virtue of the positioning of an unoccupied vehicle causes an accident. Bouchard v. Canadian Pacific, LTD, 267 AD2d 899 (3rd Dept. 1999) (Court held that owner of vehicle was vicariously liable for accident occurring when operator of said vehicle negligently parked the same, thereby causing an accident.). The rationale underpinning the Court's decision to apply VTL § 388 even in cases where the vehicle at issue is not being driven is that such application fulfills the legislative objective in enacting VTL § 388, namely "to provide recourse to an injured party against a person, financially able to respond, without whose conduct in permitting use of the vehicle the accident would not have happened." Argentina v. Emery World Wide Delivery Corp., 93 NY2d 554, 559-560 (1999)
Discussion
Defendants' motion seeking summary judgment on Chee's behalf over and against plaintiff is hereby denied. The evidence submitted by defendants fails to establish that Ping was Chee's independent contractor and further fails to establish, that Chee as lessee of the vehicle at issue bears no vicariously liability for the injuries sustained by the plaintiff through the use of the truck herein.
In this case, defendants' evidence establishes that Ping was an employee of Chee. The evidence further establishes that plaintiff was injured when he was working on the truck owned by Ping and leased by Chee. Plaintiff testified that he was working on the truck herein when the same was turned on thereby severing his fingers. Plaintiff testified that the truck had been brought in by Ping for service. He further adds that he proceeded to work on the truck, in particular the alternator located under the truck's hood, when the truck herein turned on and severed his fingers. According to plaintiff, Ping was at the wheel inside the truck when the engine sprang to life. Ping testified that he was employed by Chee as a driver, whose job entailed the delivery of cargo. Ping stated that he owned his truck and that he would receive work assignments from Chee via fax. Thereafter Ping would report directly to an assigned location and pick up and deliver icargo. He would perform the delivery and return the cargo container to the pick up point. Ping stated that he was paid by check. Hoeng, testified that he owned Chee and that Ping worked for Chee. Hoeng testified that Ping was paid by check and that no taxes were withheld from Ping's pay. Hoeng corroborated Ping's testimony about how Ping would receive and how Chee would assign work to PIng. Hoeng testified, that Ping was responsible for storage fees on his truck and for repairs to the same. Based on the foregoing, on the issue of the employment relationship between Ping and Chee, defendants fail to establish prima facie entitlment to summary judgment insofar as they fail to establish that Ping was Chee's independent contractor so as to negate Chee's liability. It is well settled that one who hires an independent contractor to perform work or provide services is not liable for said contractor's negligent acts. The basis for the rule is that one who hires an independent contractor does not have the right to control the manner in which the work is done. This relationship is to be distinguished from a master servant relationship where the master, insofar as he retains control over the servant, is vicariously liable for the acts of the servant. Whether a party is an independent contractor as opposed to an employee often turns on whether the employer exercised control over the work performed by the contractor. Other factors to consider in determining whether a person is an independent contractor is the extent to which the employer is involved in the work being form, namely whether the same furnishes tools, and equipment, whether taxes are withheld and how the contractor is paid. The mere retention of general supervisory powers by the employer over the employee does not mean that the relationship is not one of employer/independent contractor, and thus is insufficient to impose liability upon an employer for the acts of the independent contractor. In this case, defendants fail to present evidence conclusively establishing that Chee neither supervised nor controlled Ping's work, the hallmarks of an independent contractor relationship. Thus, defendants fail to establish prima facie entitlement to summary judgment on Chee's behalf on this issue. Admittedly, the evidence presented by defendants evinces that Chee was relatively uninvolved in the work performed by Ping on Chee's behalf. The evidence also evinces that Chee did not withhold taxes nor did it pay for Ping's storage and repair fees. Nevertheless, the evidence tendered by defendants fails to establish that Chee did not supervise, instruct, or control Ping's work. In fact, while not dispositive, Hoeng on behalf of Chee, never even referred to Ping as an independent contractor, instead, referring to him as his co-worker. Nothing offered by defendants establishes what supervisory powers Chee exercised over Ping or the lack thereof. A defendant seeking summary judgment must conclusively establish its defense and may not meet its burden by simply pointing to gaps in the plaintiff's proof. In the absence of evidence conclusively negating, supervision and control, this Court would be engaging in nothing short of speculation were it to conclude that Chee did not supervise or control Oing's work. As such, defendants have failed to proffer conclusive evidence demonstrating that Ping was an independent contractor. Defendants' motion is thus denied for this reason alone. Inasmuch as defendants failed to establish prima facie entitlement to summary judgment, the Court need not address the sufficiency of plaintiff's opposition.
Notwithstanding the foregoing, defendants motion must be denied since the very evidence presented by them establishes an additional basis for Chee's liability, namely vicariously liability by virtue of Chee's status as lessee of the truck herein. As discussed above, the evidence establishes that Chee leased the vehicle herein from Ping. As such, under VTL § 128, Chee is deemed an owner of the truck herein. It is well settled that pursuant to VTL § 388 an owner of a motor vehicle is vicariously liable for a motor vehicle accident, caused by the use of his vehicle, when said vehicle is being operated with the owner's consent. Liability under the statute is purely vicarious and as such, does not turn on any fault of the owner. For purposes of operation and use, the terms listed within the statute, the vehicle need not be moving at the time of the accident alleged. In fact there are a legion of cases where an owner has been held vicariously liable for the acts of an operator of a vehicle, even when the vehicle is standing still. In Eckert v. the G.B. Farrington Company, Inc., 262 A.D. 9 (4th Dept. 1941), Aff'd, 287 NY 714 (1942), the court held that owner of vehicle was vicariously liable when plaintiff was injured as he helped change a tire on owner's vehicle when said vehicle was parked on a highway and was impacted by another vehicle. In Cohn v. Nationwide Mutual Insurance Company, 286 AD2d 699 (2nd Dept. 2001), the court held that owner of vehicle was vicariously liable for injury caused as operator opened a parked car's door impacting and injuring a passing bicyclist. In Fireman's Fund American Insurance Companies v. Olin of New York City, Inc., 84 Misc 2d 504 (Supreme Court, Nassau County 1975), the court held that owner of vehicle was liable when operator of vehicle shut door thereby injuring plaintiff's finger.
Based on the foregoing, defendants fail to establish prima facie entitlement to summary judgment insofar as the evidence establishes that Ping was using the vehicle leased to Chee with his permission and that through the operation and use of the same, plaintiff was injured. Contrary to defendants assertion, based on the case law cited above, Ping sitting within the vehicle herein as plaintiff worked on the same, constitutes operation and use for purposes of VTL § 388. This case is analogous to Eckert v. the G.B. Farrington Company, Inc., 262 A.D. 9 (4th Dept. 1941), Aff'd, 287 NY 714 (1942) insofar as it involves injury to someone while a vehicle is standing still and is being repaired. Moreover, if an injury to someone through the use of a parked car's door triggers VTL § 388, then certainly injury to someone through the use of a car's engine also invokes VTL § 388. Accordingly, for this additional reason, defendants' motion is hereby denied. It is hereby
ORDERED that plaintiff serve a copy of this Order with Notice of Entry upon all defendants within thirty (30) days of this Order's entry.
This constitutes this Court's decision and Order.