Paterno v Strimling

[*1] Paterno v Strimling 2012 NY Slip Op 52511(U) Decided on March 8, 2012 Supreme Court, Ulster County Melkonian, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 8, 2012
Supreme Court, Ulster County

Michael A. Paterno and LAURENE M. PATERNO, Plaintiffs,

against

Steven M. Strimling, PHOEBE K. STRIMLING, and GATEWAYS ORGANIZATION, INC., Defendants.



07-2600



BASCH & KEEGAN, LLP

Attorneys for Plaintiffs

(Derek J. Spada, Esq., of counsel)

307 Clinton Avenue

P.O. Box 4235

Kingston, New York 12402

HORIGAN, HORIGAN & LOMBARDO, PC

Attorneys for Defendant Steven M. Strimling and Phoebe K. Strimling

(Joseph D. Giannnette, Esq., of counsel)

49 East Main Street

P.O. Box 520

Amsterdam, New York 12010

KRAL, CLERKIN, REDMOND, RYAN, PERRY & VAN ETTEN

Attorneys for Defendant Gateways Organization, Inc.

(James V. Derenze, Esq., of counsel) 170 Broadway

Fifth Floor

New York, New York 10038
Michael H. Melkonian, J.

Plaintiffs Michael and Laurene Paterno ("the Paterno's") commenced this action seeking damages for personal injuries sustained by them in a motor vehicle accident, which occurred on Route 209 in Rochester, New York. It is undisputed that on May 20, 2007, the Paterno's were stopped in the northbound lane on Route 209, waiting to make a left turn, when the vehicle driven by defendant Steven M. Strimling ("Mr. Strimling") struck the Paterno's vehicle in the rear. The Paterno's vehicle flipped over, crossed into oncoming traffic, and was struck by an oncoming vehicle. At the time of the accident, Mr. Strimling was returning from Wal-mart after having purchased walkie-talkies which were to be used during a retreat being held by defendant Gateways Organization, Inc. ("Gateways"), which Mr. Strimling was attending that weekend.

After a bench trial, in a Decision and Order dated September 14, 2011, this Court dismissed plaintiffs' complaint against Gateways on the ground that plaintiffs failed to establish that Mr. Strimling was an "employee" of Gateways for purposes of vicarious liability under the doctrine of respondeat superior. Plaintiffs now move to set aside the verdict and to renew and to reargue and on renewal and reargument to vacate the Court's prior decision and reinstate their complaint.

A motion for leave to reargue is addressed to the sound discretion of the Court and may be granted only upon a showing that the Court overlooked, misapplied or misapprehended the facts or the law, or for some reason mistakenly arrived at its earlier decision (CPLR § 2221[d][2]; Spa Realty Associates v Springs Associates, 213 AD2d 781, 783; Matter of Mayer v National Arts Club, 192 AD2d 863, 865). A motion to renew must be based upon relevant facts not offered on the prior motion or upon a demonstration that there has been a change in the law that would change the prior determination (CPLR 2221[e][2]; Spa Realty Associates v Springs Associates, 213 AD2d 781, 783; Grassel v Albany Medical Center, 223 AD2d 803, 804; Wagman v Village of Catskill, 213 AD2d 775, 775-776; Matter of Estate of Saxton v Manufacturers and Traders Trust Co., 245 AD2d 733, 734). In moving to renew and/or to reargue, plaintiffs contend that the Court failed to consider whether, in addition to an employer/employee relationship, an agency relationship existed between Gateways and Mr. Strimling for purposes of the doctrine of respondeat superior liability.

Gateways is an organization whose self-declared mission is to help people become aware of their Jewish heritage and culture. The organization regularly holds outreach programs celebrating Jewish heritage. In May 2007, Gateways held a "singles event" at the Hudson Valley Resort in Kerhonkson, New York where hundreds of men and women attend with the hope finding a match. At this particular event, Mr. Strimling attended as a non-[*2]paying guest, having been invited by his friend, Yisroel Cherns ("Rabbi Cherns"), the Director of the Singles Division and a "matchmaker." Rabbi Cherns testified that he asked that Mr. Strimling's admittance fee be waived by Rabbi Gregory Jordan, the Director of Operations for Gateways, but that, as he done in the past, Mr. Strimling volunteered to do certain tasks at the event. Rabbi Cherns testified "I said that maybe that's something you're interested in volunteering to do because he did it in the past and my thinking was to make him feel good about coming. Instead [of] freeloading, he's coming to the event and he's fulfilling something." Rabbi Jordan also testified in this matter. Rabbi Jordan testified that in exchange for attending the event for free, Mr. Strimling agreed to participate in the program's synagogue service which involved setting up the actual synagogue, which Mr. Strimling had done on prior occasions.

With regard to Mr. Strimling's errand that led to the accident, Rabbi Jordan testified that poor cell phone reception at the resort prevented him from communicating with Mr. Strimling, who was responsible for setting up the synagogue, and that he decided to purchase walkie-talkies to allow for better communication with Mr. Strimling. Rabbi Jordan testified that Mr. Strimling agreed to go purchase the walkie-talkies and that he gave Mr. Strimling a Gateways credit card with which to pay for them. Mr. Strimling testified that he was indeed asked by Rabbi Jordan to go purchase walkie-talkies at Wal-mart because of the poor cell phone reception at the resort. Mr. Strimling also testified it was not his idea to purchase the walkie-talkies and that the sole reason he went to Wal-mart was to purchase them.

Under the doctrine of respondeat superior, a principal is liable for the negligent acts committed by its agent within the scope of the agency (see, Riviello v Waldron, 47 NY2d 297, 302; Valdez v Melba Utica Packing Co., 226 AD2d 627). A principal-agent relationship may be established by evidence of the "consent of one person to allow another to act on his or her behalf and subject to his or her control, and consent by the other so to act" (Maurillo v Park Slope U—Haul, 194 AD2d 142, 146; see, Time Warner City Cable v Adelphi Univ., 27 AD3d 551, 552—553; Dynas v Nagowski, 307 AD2d 144, 147—148), even where the agent is acting as a volunteer (see, Restatement [Second] of Agency § 225). The principal's consent—and the agent's authority—may be express, implied or apparent (Maurillo v Park Slope U—Haul, 194 AD2d 142, 146). It may also be inferred by the principal's ratification of the agent's conduct (Stiebel v Haigney, 134 AD2d 516, 520). However, a duty to prevent negligence should not be imposed on one who does not control the tort-feasor (Fessler v Brunza, 89 AD2d 640).

Upon applying the foregoing principles to the instant facts, this Court finds that a sufficient degree of direction and control existed over Mr. Strimling by Gateways to constitute an agency relationship. It is undisputed that in undertaking the trip back and forth to Wal-mart, Mr. Strimling was acting upon the request of Gateways, at Gateways' direction, and for Gateways' benefit. In addition, the purchase of the walkie-talkies was paid for with a Gateways credit card and the walkie-talkies belonged to Gateways. The evidence also demonstrates that Mr. Strimling's only purpose in driving was to purchase the walkie-talkies.

Accordingly, plaintiffs' motion to reinstate plaintiffs' complaint against Gateways is granted.

This constitutes the Decision and Order of the Court. This Decision and Order is returned to the attorneys for plaintiffs. All other papers are delivered to the County Clerk. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.

SO ORDERED.

ENTER.

Dated: Troy, New York

March 8, 2012

MICHAEL H. MELKONIAN

Acting Supreme Court Justice

Papers Considered:

(1)Notice of Motion dated October 14, 2011;

(2)Affirmation of Derek J. Spada, Esq., dated October 14, 2011, with exhibits annexed;

(3)Affirmation of James V. Derenze, Esq., dated November 18, 2011

(4)Affirmation of Derek J. Spada, Esq., dated November 22, 2011.