| Howard v Codick |
| 2008 NY Slip Op 07429 [55 AD3d 1376] |
| October 3, 2008 |
| Appellate Division, Fourth Department |
| Angelette M. Howard, Appellant, v John Codick, Defendant, andGianna's Gourmet Foods, LLC, Respondent. |
—[*1] Sliwa & Lane, Buffalo (Stanley J. Sliwa of counsel), for defendant-respondent.
Appeal from an order of the Supreme Court, Erie County (Christopher J. Burns, J.), enteredAugust 15, 2007 in a personal injury action. The order granted the motion of defendant Gianna'sGourmet Foods, LLC for summary judgment and dismissed the complaint against it.
It is hereby ordered that the order so appealed from is unanimously reversed on the law withoutcosts, the motion is denied and the complaint against defendant Gianna's Gourmet Foods, LLC isreinstated.
Memorandum: Plaintiff commenced this action seeking damages for injuries she sustained when thevehicle she was operating was struck by a vehicle operated by defendant John Codick and owned byGianna's Gourmet Foods, LLC (defendant). According to plaintiff, defendant is vicariously liable forCodick's negligence because Codick was operating the vehicle with defendant's permission(see Vehicle and Traffic Law § 388 [1]). Plaintiff has been unable to locate Codicksince the accident, and thus he has not been served with process. We conclude that Supreme Courterred in granting the motion of defendant seeking summary judgment dismissing the complaint against it.
Even assuming, arguendo, that defendant met its initial burden of establishing that Codick wasoperating the truck without defendant's permission by submitting the deposition testimony of defendant'sowners indicating that Codick was operating the truck after he had been denied permission to do so,we conclude that plaintiff raised a triable issue of fact whether the disavowals of permission made bydefendant's owners and their business associate were "arguably suspect" (Country-Wide Ins. Co. v National R.R.Passenger Corp., 6 NY3d 172, 178 [2006]; see Burke v Elmendorf, 30 AD3d 553, 554 [2006]). In opposition to themotion, plaintiff submitted her deposition testimony in which she testified that, after the accident, sheoverheard a cellular telephone conversation between Codick and his "boss." Plaintiff testified that, whenCodick informed his boss that he had been in an accident, his "boss" stated, "you just left." Weconclude that such testimony is sufficient to raise an issue of fact [*2]whether his boss was aware that Codick was operating the truck.Contrary to defendant's contention, plaintiff's deposition testimony concerning that conversation doesnot constitute inadmissible hearsay. Hearsay statements are out-of-court statements offered for the truthof the matter asserted (see Nucci v Proper, 95 NY2d 597, 602 [2001]) and, here, the out ofcourt statements were offered solely to establish that they were made, rather than for their truth (seeHolyoke Mut. Ins. Co. v B. T. B. Realty Corp., 83 AD2d 603, 605 [1981]).Present—Hurlbutt, J.P., Smith, Centra, Green and Pine, JJ.