| Cross v Supersonic Motor Messenger Courier, Inc. |
| 2016 NY Slip Op 04676 [140 AD3d 503] |
| June 14, 2016 |
| Appellate Division, First Department |
[*1]
| Gregory Cross et al.,Respondents, v Supersonic Motor Messenger Courier, Inc., et al., Defendants,Continental Courier, Inc., Appellant, and Arturo Canini-Soto et al.,Respondents. |
Rutherford & Christie, LLP, New York (Lauren E. Bryant of counsel), forappellant.
Rheingold, Valet, Rheingold, McCartney & Giuffra LLP, New York (Jeremy A.Hellman of counsel), for Gregory Cross and Jeanine Cross, respondents.
Morris Duffy Alonso & Faley, New York (Iryna S. Krauchanka and Andrea M.Alonso of counsel), for Arturo Canini-Soto and Elsa Toro Gutierrez, respondents.
Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered on or about May22, 2015, which, to the extent appealed from as limited by the briefs, denied defendantContinental Courier, Inc.'s (Continental) motion for summary judgment, unanimouslymodified, on the law, to grant Continental's motion for summary judgment with respectto plaintiffs' claims based on ostensible agency, Vehicle and Traffic Law§ 388, negligent hiring, and negligent supervision, and otherwise affirmed,without costs.
Plaintiff Gregory Cross alleged that on November 13, 2008, he suffered injuries inthe scope of his employment with Modell's Sporting Goods while unloading a delivery ofsupplies from defendant W.W. Grainger, Inc. from a Continental truck driven bydefendant Arturo Canini-Soto, who was employed by Continental.
Drawing all reasonable inferences in the nonmovant's favor, questions of fact exist asto whether defendant Arturo Canini-Soto was an independent contractor or an employeeof Continental's for which vicarious liability would attach (Rodriguez v ParkchesterS. Condominium, 178 AD2d 231 [1st Dept 1991]). Although Canini-Soto workedfor Continental pursuant to a contract for an independent contractor, he was required tomaintain insurance in an amount dictated by Continental, his delivery process wascontrolled by the Continental dispatcher, he used Continental's forms, was required towear a Continental shirt, and the truck he drove bore the Continental logo. In addition,among other things, Continental dictated the type of truck Canini-Soto could use,whether it was suitable for use on any given day, and paid him based on the deliveries hemade (see Anikushina vMoodie, 58 AD3d 501 [1st Dept 2009], lv denied 12 NY3d 905 [2009];Araneo v Town Bd. for Town ofClarkstown, 55 AD3d 516 [2d Dept 2008]).
Continental is entitled to summary judgment dismissing plaintiffs' claim thatCanini-Soto was acting as Continental's ostensible agent, as there is no evidence thatplaintiff Gregory Cross acted in reliance on the belief that Canini-Soto was a Continentalemployee, and the Continental logo on the truck and the forms are insufficient todemonstrate that Continental held out Canini-Soto as an employee (Mondello v NewYork Blood Ctr.—Greater N.Y. Blood Program, 80 NY2d 219 [1992], citingRestatement [Second] of Torts § 429; Thurman v United Health Servs. Hosps., Inc., 39 AD3d934, 935-936 [3d Dept 2007], lv denied 9 NY3d 807 [2007]).
Continental is entitled to summary judgment dismissing plaintiffs' claim pursuant toVehicle and Traffic Law § 388 as it made a prima facie showing that it didnot own the truck.
Finally, Continental is entitled to summary judgment dismissing plaintiffs' claims fornegligent hiring and negligent supervision (see Nelson v E&M 2710 Clarendon LLC, 129 AD3d568, 569-570 [1st Dept 2015]). Plaintiffs have not shown that Continental had anyreason to question Canini-Soto's qualifications, who had been working for Continentalfor nearly a year prior to the accident (Maristany v Patient Support Servs., 264AD2d 302, 303 [1st Dept 1999]). Concur—Friedman, J.P., Sweeny, Webber andGesmer, JJ.