| Williams v D & J School Bus, Inc. |
| 2010 NY Slip Op 00141 [69 AD3d 617] |
| January 5, 2010 |
| Appellate Division, Second Department |
| Lowayne Williams, Respondent, v D & J School Bus, Inc.,et al., Defendants, and City of New York, et al., Defendants/Third-Party Plaintiffs-Appellants.United Transit, Inc., et al., Third-Party Defendants-Respondents. |
—[*1] Law Office of Robert Kaminski, PLLC, New York, N.Y., for plaintiff-respondent. Hartmann Doherty Rosa Berman & Bulbulia, LLC, New York, N.Y. (Paul S. Doherty III andAnthony J. Cincotta of counsel), for third-party defendants-respondents.
In a consolidated action to recover damages for personal injuries, the defendants/third-partyplaintiffs City of New York and Board of Education of the City of New York appeal, as limitedby their brief, from so much of an order of the Supreme Court, Kings County (Rothenberg, J.),dated September 2, 2008, as denied that branch of their cross motion which was for summaryjudgment dismissing the claim alleging that they were negligent in the operation of a certainschool bus, and granted the motion of the third-party defendants for summary judgmentdismissing the third-party complaint.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs payable tothe respondents appearing separately and filing separate briefs.
The defendants/third-party plaintiffs City of New York and Board of Education of the Cityof New York (hereinafter together the City defendants) cross-moved, inter alia, for summaryjudgment dismissing the complaint and all cross claims insofar as asserted against them, arguingthat they did not control, operate, or manage the school bus involved in the plaintiff's accident. Insupport of the cross motion, the City defendants submitted the deposition testimony of theiremployee, who stated that she located certain assignment agreements that purportedly assignedthe contract governing the use and operation of the school bus that struck the plaintiff to thethird-party defendant United Transit, Inc. As the Supreme Court correctly concluded, however,since the original contract governing the use and operation of the subject school bus was notproduced in the course of discovery, or submitted in connection with the cross motion, evidenceregarding an assignment of the contract was insufficient to establish, prima facie, that the Citydefendants did not maintain any control over the bus such that they could avoid liability underthe theory that it was operated by an independent contractor (see generally Chainani v Boardof Educ. of City of N.Y., 87 NY2d 370 [1995]). Accordingly, that branch of the Citydefendants' cross motion which was for summary judgment dismissing the claim alleging thatthey were negligent in the operation of the bus was properly denied, regardless of the sufficiencyof the opposing papers (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).[*2]
Furthermore, the Supreme Court properly granted themotion of the third-party defendants United Transit, Inc., and USA United Fleet, Inc., forsummary judgment dismissing the third-party complaint. The third-party defendantsdemonstrated their prima facie entitlement to judgment as a matter of law by submitting theaffidavit of their owner, Dennis Scialpi, who stated that the third-party defendants did notemploy the defendant bus driver Joseph Scully on the date that Scully was involved in thesubject accident, nor did they own, operate, or maintain the bus involved in the subject accident.Scialpi also averred in his affidavit that the assignment agreements referred to by the Citydefendants were not relevant to the school bus involved in the plaintiff's accident. In opposition,the City defendants failed to raise a triable issue of fact as to whether the third-party defendantshad any involvement in this matter, merely arguing that their motion was premature, and that adeposition of Scialpi was necessary. While determination of a summary judgment motion may bedelayed to allow for further discovery where evidence necessary to oppose the motion isunavailable to the opponent (see CPLR 3212 [f]), "[a] determination of summaryjudgment cannot be avoided by a claimed need for discovery unless some evidentiary basis isoffered to suggest that discovery may lead to relevant evidence" (Ruttura & Sons Constr. Co.v Petrocelli Constr., 257 AD2d 614, 615 [1999]; see Wyllie v District Attorney of County of Kings, 2 AD3d 714,717 [2003]). A party's mere hope that further discovery will reveal the existence of a triable issueof fact is insufficient to delay determination of the motion (see Wyllie v District Attorney ofCounty of Kings, 2 AD3d at 717; Weltmann v RWP Group, 232 AD2d 550 [1996]).Here, as the Supreme Court correctly held, the City defendants failed to provide an evidentiarybasis for their assertion that further discovery would lead to additional relevant evidence (see Lambert v Bracco, 18 AD3d619, 620 [2005]). Rivera, J.P., Miller, Leventhal and Chambers, JJ., concur.