Brown v Bay Ridge Nissan

[*1] Brown v Bay Ridge Nissan 2009 NY Slip Op 51565(U) [24 Misc 3d 137(A)] Decided on July 14, 2009 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 14, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2006-1156 K C.

Ruth A. Brown, Respondent,

against

Bay Ridge Nissan and SANTO PERREMUTO, Appellants, -and- MANNY ELL, Defendant.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Jack M. Battaglia, J.), entered April 18, 2006. The judgment, insofar as appealed from, after a nonjury trial, awarded plaintiff the principal sum of $12,500 as against defendants Bay Ridge Nissan and Santo Perremuto.

Judgment, insofar as appealed from, reversed without costs and matter remitted to the Civil Court for a new trial as against defendants Bay Ridge Nissan and Santo Perremuto.

Plaintiff brought this action to recover damages based upon an alleged improper sale of her automobile at auction. At the commencement of the nonjury trial, the attorney for defendants Bay Ridge Nissan and Santo Perremuto (hereinafter defendants) moved to dismiss based on the existence of a stipulation of settlement and release, or, in the alternative, for an adjournment to have their witnesses present at trial. The Civil Court denied the application. Following the trial, the court awarded plaintiff the principal sum of $12,500 as against defendants.

In the circumstances presented, it was an improvident exercise of discretion for the court to deny defendants' attorney's application for an adjournment. Said attorney's failure to have the witnesses present, in the expectation that a trial would not be required in light of the existence of an alleged stipulation of discontinuance and release, was reasonable. Accordingly, the judgment, insofar as appealed from, is reversed and a new trial ordered as to defendants Bay Ridge Nissan and Santo Perremuto, at which the circumstances surrounding the execution and enforceability of the stipulation of discontinuance and release may be more fully developed (see Citibank, N.A. v Rehn, 20 Misc 3d 139[A], 2008 NY Slip Op 51569[U] [App Term, 2d & 11th Jud Dists 2008]).
We note that an employee may be held liable for his own tortious acts whether or not he is acting within the scope of his employment (53 NY Jur 2d, Employment Relations § 349).

Pesce, P.J., Golia and Rios, JJ., concur. [*2]
Decision Date: July 14, 2009