| Halpin v Hernandez |
| 2008 NY Slip Op 04470 [51 AD3d 724] |
| May 13, 2008 |
| Appellate Division, Second Department |
| Jeanne Halpin et al., Respondents, v Santos A. Hernandezet al., Respondents, and Beverage Marketing USA, Inc., et al.,Appellants. |
—[*1] Daniel J. Buttafuoco & Associates, PLLC, Woodbury, N.Y. (Ellen Buchholz of counsel), forplaintiffs-respondents. Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y. (Michael I. Josephs ofcounsel), for defendants-respondents.
In an action to recover damages for personal injuries, etc., the defendants BeverageMarketing USA, Inc., d/b/a Arizona Beverages, Hornell Brewing Co., Inc., and F & VDistribution Company, LLC, appeal from an order of the Supreme Court, Suffolk County (Doyle,J.), dated April 10, 2007, which denied their motion for summary judgment dismissing thecomplaint and all cross claims insofar as asserted against them.
Ordered that the order is affirmed, with one bill of costs.
The plaintiff Jeanne Halpin allegedly sustained injuries when a delivery truck labeled"Arizona Iced Tea" collided with the school bus she was driving. The plaintiff and her husbandcommenced this action against the truck driver and his brother, who owned the truck, and thedefendants Beverage Marketing USA, Inc., doing business as Arizona Beverages, HornellBrewing Co., Inc., and F & V Distribution Company, LLC (hereinafter the appellants), allegingthat the appellants were liable for the driver's negligence under the doctrine of respondeatsuperior.
The appellants moved for summary judgment dismissing the complaint and all cross claims[*2]insofar as asserted against them on the ground that they didnot employ the driver and, therefore, were not liable for his negligence. In opposition to theirprima facie showing that the driver was an independent contractor when the accident occurred(see Meyer v Martin, 16 AD3d632, 633-634 [2005]), the plaintiffs and the other defendants raised triable issues of factregarding the appellants' control over the manner in which the driver performed his work (seeCarrion v Orbit Messenger, 82 NY2d 742 [1993]), by submitting evidence that the driverworked exclusively for the appellants delivering their merchandise in a truck bearing one of theirlogos, and that one or more of the appellants provided him with all of his customers and a dailylist of deliveries, loaded his truck with merchandise before he arrived for work each day, paidhim from the gross receipts he collected on their behalf, and restricted him from selling themerchandise to customers other than those of the appellants (see Meyer v Martin, 16AD3d at 634; Erny v Distribution Sys. of Am., 283 AD2d 391 [2001]; Lane vLyons, 277 AD2d 428 [2000]). Accordingly, the Supreme Court properly denied theappellants' motion for summary judgment dismissing the complaint and all cross claims insofaras asserted against them. Lifson, J.P., Covello, Angiolillo and Leventhal, JJ., concur.