| David v Bryon |
| 2008 NY Slip Op 08446 [56 AD3d 413] |
| November 5, 2008 |
| Appellate Division, Second Department |
| Benoj David, Respondent, v Jorge Bryon et al., Appellants,et al., Defendants. |
—[*1] Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York, N.Y. (Richard E. Lerner andPatrick J. Lawless of counsel), for appellant E.R. Furniture Delivery, Inc. Wade Clark Mulcahy, New York, N.Y. (Lora H. Gleicher and John Mulcahy of counsel), forappellant Zimmer-Hester Furniture Liquidations, Inc. Finkelstein & Partners, LLP, Newburgh, N.Y. (Marie DuSault of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants Jorge Bryon, BudgetRent A Car System, Inc., Budget Rent A Car System, Inc., doing business as Budget Rent-A-Car,Budget Rent-A-Car, and Budget Truck Trust I appeal, and the defendant E.R. Furniture Delivery,Inc., separately appeals, as limited by their respective briefs, from so much of an order of theSupreme Court, Rockland County (Weiner, J.), entered October 31, 2007, as denied theirrespective motions for summary judgment dismissing the complaint insofar as asserted againstthem, and the defendant Zimmer-Hester Furniture Liquidations, Inc., separately appeals, aslimited by its brief, from so much of the same order as denied its motion for summary judgmentdismissing the complaint and all cross claims insofar as asserted against it.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs payable bythe appellants appearing separately and filing separate briefs.
The defendant Jorge Bryon was employed by E.R. Furniture Delivery, Inc. (hereinafter E.R.[*2]Furniture), to drive a delivery truck containing furniture. E.R.Furniture was hired as an independent contractor by Zimmer-Hester Furniture Liquidations, Inc.(hereinafter Zimmer), to provide logistics services for furniture operations, which includedtrucking and warehouse management. Bryon drove a truck owned by the defendants Budget RentA Car System, Inc., Budget Rent A Car System, Inc., doing business as Budget Rent-A-Car,Budget Rent-A-Car, and Budget Truck Trust I (hereinafter collectively referred to as Budget) andallegedly leased to Zimmer.
On December 31, 2004, between 8:00 p.m. and 8:30 p.m., Bryon parked the truck in a gasstation adjacent to a store that sold beer and liquor. The plaintiff owned an automotive repairshop located in the same area as the gas station. After the plaintiff asked Bryon to move thetruck, Bryon got into the truck on the driver's side and the plaintiff climbed onto the runningboard of the truck. Thereafter, a verbal altercation ensued between Bryon and the plaintiff whilethe plaintiff was on the truck. When Bryon put the truck's gears in reverse while the plaintiff wasstanding on the running board and started moving the truck, the plaintiff fell off. The plaintiffallegedly was injured when the tires of the truck rolled over his legs.
After the plaintiff commenced this action, Budget and Bryon moved for summary judgmentdismissing the complaint insofar as asserted against them on the ground that the plaintiff'sconduct was the sole proximate cause of his injuries. E.R. Furniture moved for summaryjudgment dismissing the complaint as to it on the identical ground as Budget and Bryon. Zimmermade a separate motion for summary judgment dismissing the complaint and cross claims insofaras asserted against it on the ground that, inter alia, it could not be responsible for the plaintiff'sinjuries as an owner of a vehicle under Vehicle and Traffic Law § 388 (1) and § 128.The Supreme Court denied all of the motions. We affirm.
The defendants E.R. Furniture, Budget, and Bryon failed to meet their burden of establishingtheir prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff'sconduct in climbing onto the truck was the sole proximate cause of the accident (see Alvarezv Prospect Hosp., 68 NY2d 320 [1986]). In light of our determination, we need not examinethe sufficiency of the plaintiff's opposition papers (see Winegrad v New York Univ. Med.Ctr., 64 NY2d 851 [1985]).
Zimmer failed to establish, prima facie, that the subject rental agreement was for a period ofless than 30 days, which is relevant to the issue of liability (see Vehicle and Traffic Law§ 128; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Donato v ELRAC, Inc., 18 AD3d696, 698 [2005]). Under these circumstances, it is not necessary to consider the sufficiencyof the plaintiff's papers submitted in opposition to Zimmer's motion (see Ayotte v Gervasio,81 NY2d 1062 [1993]; Alvarez v Prospect Hosp., 68 NY2d 320, 322 [1986]; Allstate Ins. Co. v Persampire, 45AD3d 706, 707 [2007]). Moreover, Zimmer could not rely on the evidence submitted for thefirst time in its reply papers to meet its prima facie burden (see Barrera v MTA Long Is. Bus, 52 AD3d 446 [2008]; Rengifo v City of New York, 7 AD3d773 [2004]).
The parties' remaining contentions are either not properly before this Court or without merit.Skelos, J.P., Ritter, Carni and Dickerson, JJ., concur.