Opinion
102331/05.
Decided December 21, 2010.
The following papers numbered 1 to 4 were marked fully submitted on the 3rd day of November, 2010:
Pages Numbered Notice of Motion to Consolidate by Plaintiff Alice Marino, with Supporting Papers and Exhibit (dated April 21, 2010) ............................................................... 1 Notice of Motion for Summary Judgment by Defendant the City of New York, with Supporting Papers and Exhibits (dated April 26, 2010) ............................................................... 2 Affirmation in Opposition by Plaintiff Alice Marino, with Exhibits (dated October 29, 2010) ............................................................. 3 Reply Affirmation (dated November 1, 2010) ............................................................. 4
Upon the foregoing papers, plaintiff's motion (No. 1521) to consolidate Action No. 1 and Action No. 2 is denied, and the cross motion for summary judgment (No. 1691) of defendants THE CITY OF NEW YORK and the NEW YORK CITY DEPARTMENT OF ENVIRONMENTAL PROTECTION is granted.
Plaintiff commenced this action to recover damages for injuries she allegedly sustained as the result of an automobile accident which occurred when the vehicle in which she was riding was struck by a vehicle operated by defendant JOSEPH LENT and owned by defendant EXTREME TOWING AND RECOVERY, INC. The vehicle in which plaintiff was a passenger was being driven by defendant RICHARD MORALES, Deputy Director of the Fleet Service Division of the NEW YORK CITY DEPARTMENT OF ENVIRONMENTAL PROTECTION (hereinafter "DEP") and an employee of defendant THE CITY OF NEW YORK (hereinafter "THE CITY"). Plaintiff's claims against THE CITY and DEP are based on the theory of respondeat superior. According to the complaint, it was an altercation between MORALES and LENT which led to a car chase and the collision between the two vehicles. As a result of said collision, plaintiff claims to have suffered serious injuries to her back, spine, legs and head.
Initially, plaintiff commenced an action against THE CITY, DEP, MORALES, EXTREME TOWING AND RECOVERY, INC., and LENT (Action No. 1). A second action was later commenced against MORALES, EXTREME TOWING and LENT only (Action No. 2). MORALES, EXTREME TOWING and LENT never appeared in either action and a default judgment was entered against them in Action No. 2. Plaintiff now moves to consolidate both actions, claiming that each involves the same motor vehicle accident, the same defendants, the same allegations, the same issues, and that all of the discovery in both actions has been conducted in Action No. 1. Thus, plaintiff argues that the two actions should be consolidated in the interest of judicial economy ( see CPLR 602[a]).
In a cross motion, THE CITY and DEP move for summary judgment dismissing the complaint against them on the ground that MORALES was not acting within the scope of his employment at the time of the accident. In support, THE CITY relies on the EBT testimony of MORALES' supervisor, Nicholas Merckling, who testified, inter alia, that while MORALES was permitted to drive a DEP vehicle, the vehicle was only supposed to be used for "work" purposes, and that civilians, such as plaintiff, were not permitted to ride in a CITY or DEP vehicle unless he or she had business dealings with the agency. In addition, Merckling testified that he was not aware of any exception that would have permitted MORALES to use the subject vehicle for personal reasons on the date of the accident. More specifically, the witness testified that MORALES is only permitted to use the DEP vehicle for business-related purposes specifically pertaining to his work with the DEP, and to travel between work and home, as well as in any emergency situation which might occur on weekends or "off-hours". According to THE CITY, MORALES was not under the control of his employer when he (1) attempted to barricade codefendant LENT's vehicle, and (2) thereafter participated in a car chase which resulted in a collision between the DEP vehicle and LENT's.
In addition, THE CITY submits a copy of plaintiff's EBT testimony which indicates that she was a friend of MORALES, and that he had offered to give her a ride. THE CITY argues that this proof establishes that MORALES was not in a work-related situation when the altercation and the subsequent motor vehicle collision occurred. Accordingly, THE CITY argues that neither it nor DEP may be held vicariously liable for the injuries sustained by plaintiff in the subject motor vehicle accident.
THE CITY further contends that MORALES did not have any express or implied permission to operate the subject vehicle during "off-hours", when the accident occurred. In this regard, THE CITY contends that while it is required to defend its employees in any action or proceeding arising out of an act or omission arising within the scope of his or her public employment, it is not required to represent MORALES in the subject action because he was not acting within the scope of his employment at the time in question.
In opposition, plaintiff submits an affidavit by MORALES in which he states that he was not using the subject DEP vehicle for personal reasons on the date in question. Moreover, MORALES claims that he was already involved in an argument with LENT when plaintiff arrived, and that he instructed her to sit in the vehicle to be safe. Accordingly, plaintiff contends that THE CITY has failed to establish prima facie its entitlement to judgment as a matter of law by failing to submit any proof in admissible form establishing that MORALES was acting outside the scope of his employment at the time of the subject accident. Furthermore, plaintiff contends that issues of fact exist regarding Vehicle and Traffic Law § 388 with regard to a vehicle owner's responsibility for the negligence of the operator of a vehicle where there is either express or implied permission to use the vehicle. According to plaintiff, there is a strong presumption that a vehicle is being operated with an owner's consent, which can only be rebutted by substantial evidence to the contrary. Here, MORALES claimed that he was permitted to use this vehicle 7 days a week, 24 hours per day. Moreover, MORALES stated that from 1997 to 2005, THE CITY provided him with a departmental vehicle; that an overnight vehicle authorization was properly filed each year; and that he had been given permission each year to take the vehicle home on a daily basis, including weekends. He also maintained that he was never disciplined by his supervisors for using the vehicle improperly following the accident, which according to plaintiff, raises a question of fact as to his implied permissive use of the vehicle. While THE CITY disputes MORALES' testimony regarding his use of the DEP vehicle, plaintiff responds that issues of credibility present a question of fact for a jury.
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issue of fact from the case ( see Zuckerman v. City of New York, 49 NY2d 557, 562). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers ( see Matter of Redemption Church of Christ v. Williams, 84 AD2d 648, 649). Once a movant has met his or her burden of establishing entitlement to judgment as a matter of law, the burden shifts to the opponent to come forward with proof sufficient to raise triable issues of fact ( see Zuckerman v. City of New York 49 NY2d at 562). Summary judgment, however, will not be granted if there is any doubt as to the existence of a triable issue of fact, or where such an issue is "arguable" ( see Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404).
Here, it is the opinion of this Court that the proof submitted by THE CITY and DEP on their cross motion is sufficient to establish prima facie that MORALES was not acting within the scope of his employment when the subject accident occurred. In opposition, plaintiff has failed to raise a triable issue of fact.
Under the doctrine of respondeat superior, an employer will be held liable for the negligence of an employee committed while the latter is acting in the scope of his or her employment ( see Lundberg v. State of New York, 25 NY2d 467, 470). When a plaintiff invokes the doctrine of respondeat superior, it is he or she who has the burden of establishing by a fair preponderance of the credible evidence that the act complained of occurred while defendant's employee was acting within the scope of his employment ( see McDowell v. City of New York, 208 AD2d 507). Contrariwise, if it is shown that an employee's conduct is brought on by a matter wholly personal in nature and not job-related, his or her actions cannot be said to fall within the scope of employment ( see Stavitz v. City of New York, 98 AD2d 529, 531).
In this case, according to the EBT testimony of MORALES' supervisor, the former was only permitted to use the subject vehicle during normal working hours for work-related business Monday through Friday, and that he was required to obtain authorization to use the vehicle on weekends. Here, it appears that MORALES became involved in a dispute with LENT on Saturday, December 13, 2003, at approximately 4:30pm. Thus, the accident did not occur during normal working hours. While MORALES claims that he was given permission to use the vehicle seven days a week, twenty-four hours a day because he was always "on-call", the uncontroverted proof still indicates that MORALES was involved in a personal dispute unrelated to the scope of his employment when the subject accident occurred. MORALES' deposition testimony is not to the contrary. In addition, his affidavit in opposition to the cross motion is devoid of any proof establishing or tending to establish the presence of a permissible use, e.g., that he was (1) on his way to work, (2) responding to an emergency, or (3) otherwise acting within the scope of his employment, from the time the altercation began through the time that the motor vehicle accident occurred. Instead, MORALES admits in his affidavit that he and LENT were arguing over damage to MORALES' individual property caused by LENT's tow truck, and that when LENT tried to leave the scene, MORALES called the police and moved the subject DEP vehicle in front of LENT's tow truck to prevent him from leaving. When the argument escalated, MORALES told plaintiff to wait in the subject vehicle because he was concerned for her safety. A car chase followed, resulting in the subject motor vehicle accident which caused plaintiff's purported injury. In the opinion of this Court, this proof is insufficient to rebut the cross movants' prima facie showing or otherwise raise a triable issue of fact as to whether MORALES was acting within the scope of his employment at the time of the subject accident. Thus, the complaint as against THE CITY and DEP must be dismissed.
Based on the foregoing, since plaintiff has already obtained a default judgment in Action No. 2 against the remaining defendants in Action No. 1, her motion to consolidate should be denied and Action No. 1 is dismissed as duplicative ( see CPLR 3211[a][4]).
Accordingly, it is
ORDERED that the cross motion for summary judgment (No. 1691) of defendant THE CITY OF NEW YORK and the NEW YORK CITY DEPARTMENT OF ENVIRONMENTAL PROTECTION is granted and the complaint in Action No. 1 (Index No. 102331/05) is hereby dismissed; and it is further
ORDERED that plaintiff's motion (No. 1521) to consolidate is denied; and it is further
ORDERED that upon the filing of any necessary papers and the payment of any required fees, Action No. 2 (Index No. 103749/06) can be set down for trial on the issue of damages; and it is further
ORDERED that the Clerk enter judgment and mark his records accordingly.