Opinion
2020–08580 Index No. 505717/18
05-10-2023
Joan M. Encarnacion CACERES, respondent, v. TOYOTA MOTOR NORTH AMERICA, INC., et al., appellants, et al., defendants.
Eckert Seamans Cherin & Mellott, LLC, White Plains, NY (Steven R. Kramer of counsel), for appellants. Subin Associates, LLP (Robert J. Eisen and Pollack Pollack Isaac & DeCicco, LLP, New York, NY [Joshua Block ], of counsel), for respondent.
Eckert Seamans Cherin & Mellott, LLC, White Plains, NY (Steven R. Kramer of counsel), for appellants.
Subin Associates, LLP (Robert J. Eisen and Pollack Pollack Isaac & DeCicco, LLP, New York, NY [Joshua Block ], of counsel), for respondent.
BETSY BARROS, J.P., JOSEPH J. MALTESE, JOSEPH A. ZAYAS, DEBORAH A. DOWLING, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the defendants Toyota Motor North America, Inc., and Toyota Motor Sales U.S.A., Inc., appeal from an order of the Supreme Court, Kings County (Loren Baily–Schiffman, J.), dated October 1, 2020. The order, insofar as appealed from, denied the cross-motion of the defendants Toyota Motor North America, Inc., and Toyota Motor Sales U.S.A., Inc., for summary judgment dismissing the complaint and all cross-claims insofar as asserted against them.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the cross-motion of the defendants Toyota Motor North America, Inc., and Toyota Motor Sales U.S.A., Inc., for summary judgment dismissing the complaint and all cross-claims insofar as asserted against them is granted.
The plaintiff commenced this action to recover damages for injuries he allegedly sustained when the front driver's side wheel of a vehicle that he was operating fell off shortly after being serviced at the defendant Plaza Toyota, a car dealership and service center. The plaintiff moved for summary judgment on the issue of liability against the defendants Plaza Auto Mall, Ltd., and Plaza Automotive, Ltd. The defendants Toyota Motor North America, Inc., and Toyota Motor Sales U.S.A., Inc. (hereinafter TMS, and together with Toyota Motor North America, Inc., the Toyota defendants), cross-moved for summary judgment dismissing the complaint and all cross-claims insofar as asserted against them. Only the plaintiff opposed the cross-motion. In an order dated October 1, 2020, the Supreme Court, inter alia, denied the Toyota defendants’ cross-motion. The Toyota defendants appeal.
The Supreme Court erred in denying the Toyota defendants’ cross-motion for summary judgment dismissing the complaint and all cross-claims insofar as asserted against them. "In determining whether a defendant, as a franchisor, may be held vicariously liable for the acts of its franchisee, the most significant factor is the degree of control that the franchisor maintains over the daily operations of the franchisee or, more specifically, the manner of performing the very work in the course of which the accident occurred" ( Khanimov v. McDonald's Corp., 121 A.D.3d 1050, 1051, 995 N.Y.S.2d 202 ; see Smith–Hoy v. AMC Prop. Evaluations, Inc., 52 A.D.3d 809, 811, 862 N.Y.S.2d 513 ).
Here, affidavits submitted by the Toyota defendants in support of their motion established, prima facie, that they lacked the requisite control over the manner in which Plaza Toyota serviced vehicles (see Khanimov v. McDonald's Corp., 121 A.D.3d at 1051, 995 N.Y.S.2d 202 ). Contrary to the plaintiff's contention, under the circumstances of this case, the Toyota defendants’ failure to submit a copy of a dealership agreement between TMS and Plaza Toyota, does not negate TMS's entitlement to summary judgment (cf. Stathis v. Estate of Donald Karas, 193 A.D.3d 897, 899, 147 N.Y.S.3d 83 ). Moreover, although the affidavits submitted by the Toyota defendants in support of their motion were notarized outside of New York State and not accompanied by certificates of conformity as required by CPLR 2309(c), this was not a fatal defect (see American Express Natl. Bank v. Hoffman, 210 A.D.3d 1039, 1040, 178 N.Y.S.3d 776 ; Christiana Trust v. Moneta, 186 A.D.3d 1604, 1606, 131 N.Y.S.3d 668 ; Moore v. DL Peterson Trust, 172 A.D.3d 1058, 1059–1060, 101 N.Y.S.3d 194 ).
In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ). Accordingly, the Supreme Court should have granted the Toyota defendants’ motion for summary judgment dismissing the complaint and all cross-claims insofar as asserted against them.
BARROS, J.P., MALTESE, ZAYAS and DOWLING, JJ., concur.