| Bravo v Vargas |
| 2014 NY Slip Op 00082 [113 AD3d 579] |
| January 8, 2014 |
| Appellate Division, Second Department |
| Rubisela Bravo, Appellant, v Eric Mundo Vargaset al., Respondents. |
—[*1] Brand, Glick & Brand, P.C., Garden City, N.Y. (Peter M. Khrinenko of counsel), forrespondents Eric Mundo Vargas and Enterprise Rent-A-Car Company of Boston, Inc. Lavin, O'Neil, Ricci, Cedrone & DiSipio, New York, N.Y. (Timothy J. McHugh ofcounsel), for respondent Sunstar Vending, Inc.
In an action to recover damages for personal injuries, the plaintiff appeals, as limitedby her brief, from so much of an order of the Supreme Court, Kings County (Rothenberg,J.), dated October 18, 2012, as granted that branch of the motion of the defendants EricMundo Vargas and Enterprise Rent-A-Car Company of Boston, Inc., which was forsummary judgment dismissing the complaint insofar as asserted against them, and thatbranch of the cross motion of the defendant Sunstar Vending, Inc., which was forsummary judgment dismissing the complaint insofar as asserted against it.
Ordered that the order is modified, on the law, (1) by deleting the provision thereofgranting that branch of the motion of the defendants Eric Mundo Vargas and EnterpriseRent-A-Car Company of Boston, Inc., which was for summary judgment dismissing thecomplaint insofar as asserted against the defendant Eric Mundo Vargas, and substitutingtherefor a provision denying that branch of the motion, and (2) by deleting the provisionthereof granting that branch of the cross motion of Sunstar Vending, Inc., which was forsummary judgment dismissing the complaint insofar as asserted against it, andsubstituting therefor a provision denying that branch of the cross motion; as so modified,the order is affirmed insofar as appealed from, with one bill of costs payable to theplaintiff by the defendant Sunstar Vending, Inc., and the defendant Eric Mundo Vargas.
The plaintiff was a passenger in a rental car owned by the defendant EnterpriseRent-A-Car Company of Boston, Inc. (hereinafter Enterprise), and operated by thedefendant Eric Mundo Vargas. The plaintiff allegedly was injured when Vargas crashedinto a utility pole on the side of a roadway. The plaintiff commenced this personal injuryaction against Vargas, Enterprise, and Vargas's employer, Sunstar Vending Inc.(hereinafter Sunstar), which the plaintiff alleged was vicariously liable for Vargas'sconduct. Enterprise and Vargas together moved, inter alia, for summary judgmentdismissing the complaint insofar as asserted against them, and Sunstar cross-[*2]moved, among other things, for summary judgmentdismissing the complaint insofar as asserted against it. The Supreme Court granted themotion and the cross motion. The plaintiff appeals.
Contrary to the plaintiff's contention, the Supreme Court properly granted that branchof the motion of Vargas and Enterprise which was for summary judgment dismissing thecomplaint insofar as asserted against Enterprise. Under the Graves Amendment (49 USC§ 30106), the owner of a leased or rented motor vehicle cannot be held liable forpersonal injuries resulting from the use of such vehicle if the owner (i) is engaged in thetrade or business of renting or leasing motor vehicles, and (ii) engaged in no negligenceor criminal wrongdoing (see 49 USC § 30106 [a]; Ballatore v HUB Truck RentalCorp., 83 AD3d 978, 979 [2011]).
Here, Vargas and Enterprise established Enterprise's prima facie entitlement tojudgment as a matter of law by showing that Enterprise was engaged in the business ofrenting vehicles and was not negligent in entrusting the vehicle to Vargas or inmaintaining the vehicle's brakes, and that the accident was not caused by brake failure(see Ballatore v HUB Truck Rental Corp., 83 AD3 at 980). In opposition to thisshowing, the plaintiff failed to raise a triable issue of fact (see Zuckerman v City ofNew York, 49 NY2d 557, 562 [1980]).
However, the Supreme Court erred in awarding summary judgment to Vargas andSunstar dismissing the complaint insofar as asserted against them.
Under the emergency doctrine, actors "faced with a sudden and unexpectedcircumstance, not of their own making, that leaves them with little or no time forreflection or reasonably causes them to be so disturbed that they are compelled to make aquick decision without weighing alternative courses of conduct, may not be negligent iftheir actions are reasonable and prudent in the context of the emergency" (Tarnavska v Manhattan & BronxSurface Tr. Operating Auth., 106 AD3d 1079, 1079 [2013] [internal quotationmarks omitted]; see Pavane vMarte, 109 AD3d 970, 971 [2013]; Hendrickson v Philbor Motors, Inc., 101 AD3d 812, 813[2012]). Both the existence of an emergency and the reasonableness of a party's responseto it generally present issues of fact (see Pavane v Marte, 109 AD3d at 971; Marks v Robb, 90 AD3d863, 864 [2011]).
Vargas and Sunstar established their prima facie entitlement to judgment as a matterof law by submitting a transcript of Vargas's deposition testimony and that of adisinterested witness, explaining that Vargas was faced with an emergency situation notof his own making when an oncoming car driving at a high rate of speed suddenlycrossed over a double yellow line at a distance too close for Vargas to avoid a head-oncollision by braking, and that he reasonably responded to that emergency by swerving tothe right (see Pavane v Marte, 109 AD3d at 971-972; Parastatidis v Holbrook RentalCtr., Inc., 95 AD3d 975 [2012]; Ferebee v Amaya, 83 AD3d 997 [2011]; Mandel v Benn, 67 AD3d746, 747 [2009]; Marsch vCatanzaro, 40 AD3d 941, 941-942 [2007]). In opposition, however, the plaintiffraised a triable issue of fact as to the applicability of the emergency doctrine bysubmitting a copy of the police accident report, which attributed a statement to Vargasthat "he lost control of [his] vehicle causing it to strike the pole," and by submitting atranscript of the deposition testimony of the two police officers who responded to thescene, one of whom prepared the subject accident report. The police officer whoprepared the report was acting within the scope of her duty in recording Vargas'sstatement, and the statement is admissible as a party admission (see Jackson v Trust, 103 AD3d851, 852 [2013]; Scott vKass, 48 AD3d 785 [2008]; Guevara v Zaharakis, 303 AD2d 555[2003]; cf. Makagon v ToyotaMotor Credit Corp., 23 AD3d 443, 444 [2005]). Resolving questions ofcredibility, assessing the accuracy of witnesses, and reconciling conflicting statementsare tasks entrusted to the trier of fact (see Kahan v Spira, 88 AD3d 964, 965-966 [2011]; Gille v Long Beach City SchoolDist., 84 AD3d 1022, 1023 [2011]; Ruiz v Griffin, 71 AD3d 1112, 1115 [2010]). Accordingly,the Supreme Court should have denied that branch of the motion of Vargas andEnterprise which was for summary judgment dismissing the complaint insofar as assertedagainst Vargas.
In viewing the evidence in the light most favorable to the nonmoving party, andgiving the nonmoving party the benefit of all reasonable inferences that can be drawnfrom the evidence, we conclude that there are triable issues of fact with respect towhether Vargas was employed by Sunstar and acting within the scope of his employmentat the time of the accident (see[*3]Pearson v Dix McBride, LLC, 63 AD3d895, 895 [2009]; Baker v Briarcliff School Dist., 205 AD2d 652, 653[1994]). The determination of whether an employer-employee relationship exists turns onwhether the alleged employer exercises control over the results produced or, moreimportantly, the means used to achieve the results (see Matter of Ted Is Back Corp.[Roberts], 64 NY2d 725 [1984]). Here, the record reveals a factual dispute as towhether Vargas was operating a vehicle provided to him by Sunstar in order to performhis duties. Accordingly, the Supreme Court should have denied that branch of Sunstar'scross motion which was for summary judgment dismissing the complaint insofar asasserted against it.
The parties' remaining contentions either are without merit or have been renderedacademic in light of our determination. Skelos, J.P., Leventhal, Lott and Cohen, JJ.,concur.