Opinion
Argued September 29, 2000.
November 28, 2000.
In an action to recover damages for personal injuries, the defendant Benjamin Pontiac, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Doyle, J.), dated June 28, 1999, as denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, and granted those branches of the separate motion of the defendant Ramon Alicea which were for summary judgment dismissing the complaint and its cross claims asserted against that defendant.
Curtis, Vasile, Devine McElhenny, Merrick, N.Y. (Michael Mehary and Marianne Arcieri of counsel), for appellant.
Queller Fisher (Seligson, Rothman Rothman, New York, N Y [Martin S. Rothman, Joseph A. Montanile, and Alyne I. Diamond] of counsel), for plaintiff-respondent.
Adler Larkin, Hauppauge, N.Y. (Robert X. Larkin of counsel), for defendant-respondent.
Before: CORNELIUS J. O'BRIEN, J.P., LEO F. McGINITY, DANIEL F. LUCIANO, ROBERT W. SCHMIDT, JJ.
DECISION ORDER
ORDERED that the appeal from so much of the order as granted that branch of the motion of the defendant Ramon Alicea which was for summary judgment dismissing the complaint insofar as asserted against him is dismissed, as the appellant is not aggrieved by that portion of the order (see, CPLR 5511); and it is further,
ORDERED that the order is affirmed insofar as appealed from and reviewed; and it is further,
ORDERED that the respondents are awarded one bill of costs.
There was sufficient admissible evidence to raise a question of fact as to whether the company which installed the car alarm in the defendant Ramon Alicea's car was an independent contractor (see, In re Beach v. Velzy, 238 N.Y. 100, 104; Lazo v. Mak's Trading Co., 199 A.D.2d 165, affd 84 N.Y.2d 896; cf., Sikes v. Chevron Cos., 173 A.D.2d 810). Therefore, the Supreme Court properly denied that branch of the appellant's motion which was for summary judgment dismissing the cause of action to recover damages for negligence (see, CPLR 3212[b]; Zuckerman v. City of New York, 49 N.Y.2d 557, 562).
In addition, the evidence established that Alicea was entitled to summary judgment dismissing the appellant's cross claims insofar as asserted against him (see, Amaro v. City of New York, 40 N.Y.2d 30, 36; cf., Mehring v. Cahill, 271 A.D.2d 415).
The appellant's remaining contentions are without merit.