Szumowski v PV Holding Corp.

Szumowski v PV Holding Corp. 2011 NY Slip Op 08674 Decided on December 1, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 1, 2011
Tom, J.P., Andrias, Catterson, Abdus-Salaam, Román, JJ.
6206 109074/07

[*1]Zygmunt Szumowski, et al., Plaintiffs-Respondents,

v

PV Holding Corp., Defendant-Appellant.




Rubin, Fiorella & Friedman, LLP, New York (Michael C.
O'Malley of counsel), for appellant.
Grey & Grey, LLP, Farmingdale (Sherman B. Kerner of
counsel), for respondents.

Order, Supreme Court, New York County (George J. Silver, J.), entered March 23, 2011, which, to the extent appealed from, denied defendant's motion for summary judgment dismissing the complaint, and granted plaintiffs' cross motion for summary judgment as to liability, unanimously reversed, on the law, without costs, defendant's motion granted and plaintiffs' cross motion denied. The Clerk is directed to enter judgment in defendant's favor dismissing the complaint.

Plaintiffs seek to impose vicarious liability on defendant PV Holding Corp. for injuries plaintiff Zygmunt Szumowski allegedly sustained during the course of his employment at Avis when an employee of Budget Rent A Car Systems negligently operated a motor vehicle. Title to that vehicle was held by defendant. However, no liability may be imputed to defendant, because plaintiffs' "exclusive remedy" is workers' compensation (Workers' Compensation Law § 29[6]; see Kenny v Bacolo, 61 NY2d 642, 645 [1983]; Naso v Lafata, 4 NY2d 585, 590 [1958]). Given that plaintiffs did not assert any allegation that defendant had committed an act constituting affirmative negligence, the motion court should have dismissed the complaint (see Chiriboga v Ebrahimoff, 281 AD2d 353, 354 [2001]). We find plaintiffs' arguments to the contrary unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 1, 2011

CLERK