| Quizhpe v Luvin Constr. |
| 2010 NY Slip Op 01466 [70 AD3d 912] |
| February 16, 2010 |
| Appellate Division, Second Department |
| Segundo Quizhpe, Appellant, v Luvin Construction et al.,Respondents, et al., Defendant. |
—[*1] Weiner, Millo & Morgan, LLC, New York, N.Y. (Scott F. Morgan of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Nassau County (Winslow, J.), entered January 2, 2009, which denied hismotion for summary judgment on the issue of liability and to dismiss all affirmative defenses andgranted the cross motion of the defendants Luvin Construction and Jose I. Sanchez for summaryjudgment dismissing the complaint insofar as asserted against them.
Ordered that the order is modified, on the law, the facts, and as a matter of discretion, bydeleting the provision thereof granting the cross motion of the defendants Luvin ConstructionCorp. and Jose I. Sanchez for summary judgment dismissing the complaint insofar as assertedagainst them and substituting therefor a provision denying the cross motion with leave to renew;as so modified, the order is affirmed, with costs to the appellant.
On July 21, 2006, the plaintiff allegedly was injured when a minivan in which he was apassenger "roll[ed] two or three times across the roadway." As admitted in the defendants'response to the notice to admit dated February 9, 2007, the defendant Jose I. Sanchez was, at thetime of the accident, operating the minivan, which was owned by the defendant LuvinConstruction Corp. (hereinafter Luvin). The response to the notice to admit also expresslyadmitted that Sanchez was operating the vehicle "under [sic] the course of hisemployment for FML Contracting Inc." (hereinafter FML), and denied that Sanchez wasemployed by Luvin on the date of the accident.
The plaintiff moved for summary judgment on the issue of liability and to dismiss allaffirmative defenses, submitting evidence to the effect that Sanchez had lost control of the vanprior to the accident and arguing that, as a matter of law, Sanchez was negligent in his operationof the vehicle. Luvin and Sanchez (hereinafter the defendants) then cross-moved for summaryjudgment dismissing the complaint insofar as asserted against them. They pointed to evidencethat, prior to the accident, the steering and braking mechanisms of the vehicle had becomeunresponsive, and argued that the record conclusively established that Sanchez was confrontedwith a "mechanical malfunction," so that, pursuant to the[*2]"emergency" doctrine, his operation of the minivan was, as a matterof law, free of negligence.
The Supreme Court denied the plaintiff's motion, and granted the defendants' cross motionon a theory that was not raised by either party. The Supreme Court determined, based on itsreview of the record, that Luvin was effectively indistinguishable from FML, the company that,as admitted in the response to the notice to admit, employed Sanchez at the time of the accidentand that, according to the plaintiff's deposition testimony, employed the plaintiff as well. TheSupreme Court concluded that the plaintiff's receipt of Workers' Compensation benefitsprecluded him from seeking to impose tort liability either on Luvin, the effective equivalent ofhis actual employer (FML), or on his co-employee Sanchez. This appeal ensued.
The Supreme Court "erred in essentially searching the record and [granting relief] basedupon arguments that were not raised" (Matter of Ek v Travis, 20 AD3d 667, 668 [2005])."A motion for summary judgment 'on one claim or defense does not provide a basis for searchingthe record and granting summary judgment on an unrelated claim or defense" (Baseball Off.of Commr. v Marsh & McLennan, 295 AD2d 73, 82 [2002], quoting Sadkin v Raskin &Rappoport, 271 AD2d 272, 273 [2000]; see also Dunham v Hilco Constr. Co., 89NY2d 425, 430 [1996]; Carrollwood Condominium Bd. of Mgrs. v Pulle, 291 AD2d 425[2002]; World Trade Knitting Mills v Lido Knitting Mills, 154 AD2d 99, 114 [1990];Conroy v Swartout, 135 AD2d 945 [1987]). Since Sanchez and Luvin did not seeksummary judgment based on the Workers' Compensation statutes, the plaintiff had "noopportunity for opposition" (Lanoce v Anderson, Banks, Curran & Donoghue, 259AD2d 965, 965 [1999]). We further note that the plaintiff was deprived any opportunity to argue,for example, that further discovery might be warranted with respect to various issues raised bythe record related to the Workers' Compensation defense (see CPLR 3212 [f]). Under thecircumstances presented here, it is appropriate to deny the cross motion with leave to any of theparties to make a motion for summary judgment, if they be so advised, regarding any issuerelating to the Workers' Compensation Law.
We have examined the issues and arguments that were raised in the motion and in the crossmotion, and concluded that neither the plaintiff nor the defendants demonstrated prima facieentitlement to judgment as a matter of law. There are, among other things, issues of credibility,the resolution of which will depend upon factual determinations as to whether, and if so to whatextent, a mechanical defect in the steering or braking mechanism of the minivan might havecontributed to the accident. Related triable issues concern whether Sanchez might have been aposition to foresee that the van had a greater tendency to malfunction at certain speeds, whetherSanchez might have been driving at an excessive rate of speed under the circumstances,(including his supposed prior knowledge of problems with the minivan), and whether he mighthave been otherwise negligent in the operation of the minivan. On this record, we cannotconclude that Sanchez's operation of the vehicle was negligent as a matter of law. Dillon, J.P.,Florio, Hall and Sgroi, JJ., concur. [Prior Case History: 2008 NY Slip Op 33491(U).]