Opinion
184 CA 15-01337.
04-29-2016
UTICA NATIONAL INSURANCE GROUP, as Subrogee of Marianne Ellis and Mark Ellis, Plaintiff–Respondent, v. OUR TOUCH, INC., Defendant–Appellant, and Zurich American Insurance Company, Defendant.
Cartafalsa, Slattery, Turpin & Lenoff, Buffalo (Michael J. Lenoff of Counsel), for Defendant–Appellant. Feldman Kieffer, LLP, Buffalo (Adam C. Ferrandino of Counsel), for Plaintiff–Respondent.
Cartafalsa, Slattery, Turpin & Lenoff, Buffalo (Michael J. Lenoff of Counsel), for Defendant–Appellant.
Feldman Kieffer, LLP, Buffalo (Adam C. Ferrandino of Counsel), for Plaintiff–Respondent.
PRESENT: CARNI, J.P., LINDLEY, DeJOSEPH, NEMOYER, AND TROUTMAN, JJ.
Memorandum: In this insurance subrogation action, Our Touch, Inc. (defendant) appeals from an order that granted plaintiff's motion for partial summary judgment on the issue of liability and denied defendant's cross motion for summary judgment dismissing the amended complaint and for an order amending the caption to remove former defendant Zurich American Insurance Company (Zurich) therefrom. We conclude that Supreme Court erred in granting plaintiff's motion for partial summary judgment on the issue of liability but properly denied that part of defendant's cross motion seeking summary judgment dismissing the amended complaint. Plaintiff established its entitlement to judgment as a matter of law only on the specific issue that defendant's employee was within the scope of her employment at the time she took a cigarette break (see Matter of Kontogiannis v. Nationwide PC, 51 A.D.3d 1180, 1181, 857 N.Y.S.2d 803 ; Matter of Pabon v. New York City Tr. Auth., 24 A.D.3d 833, 833, 805 N.Y.S.2d 183 ). Plaintiff failed to establish as a matter of law, however, that any of defendant's employees were responsible for starting the fire and that their conduct fell below the standard of due care (see Merchants Mut. Ins. Co. v. Surrey Elec. Co., 130 A.D.2d 721, 722, 516 N.Y.S.2d 32 ; see generally Ugarriza v. Schmieder, 46 N.Y.2d 471, 474, 414 N.Y.S.2d 304, 386 N.E.2d 1324 ). Additionally, as we concluded on a prior appeal in this matter (Utica Natl. Ins. Group v. Our Touch, Inc., 109 A.D.3d 1182, 971 N.Y.S.2d 720 ), defendant failed to establish as a matter of law that the acts or omissions of its employees did not cause the fire or did not rise to the level of negligence, and plaintiff in any event raised triable issues of fact (see Strnad v. Garvin, 64 A.D.3d 1230, 1230, 882 N.Y.S.2d 633, affd. 13 N.Y.3d 851, 891 N.Y.S.2d 686, 920 N.E.2d 90 ; New York Mun. Ins. Reciprocal v. Casella Constr., Inc., 105 A.D.3d 1440, 1441, 964 N.Y.S.2d 370 ).
Although we decline to disturb the order on appeal insofar as it denied that part of defendant's cross motion seeking to amend the caption, we note that the parties previously agreed, in a “so-ordered stipulation of discontinuance” signed by the court, to the discontinuance of plaintiff's action against Zurich. We note that future papers in the action should reflect that stipulation of discontinuance by listing only current parties to the action.
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying plaintiff's motion and as modified the order is affirmed without costs.