Doumbia v Moonlight Towing, Inc.

Doumbia v Moonlight Towing, Inc. 2018 NY Slip Op 02739 Decided on April 19, 2018 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 April 19, 2018
Friedman, J.P., Richter, Andrias, Kapnick, Webber, JJ.
6320 302911/14

[*1]Oumar Doumbia, Plaintiff-Respondent,

v

Moonlight Towing, Inc., Defendant-Appellant, "John Doe," etc., et al., Defendants-Respondents.

Picciano & Scahill, P.C., Bethpage (Andrea E. Ferrucci of counsel), for appellant.

Bernstone & Grieco, LLP, New York (Peter B. Croly of counsel), for Oumar Doumbia, respondent.

White Fleischner & Fino, LLP, New York (Matthew I. Toker of counsel), for John Doe and USA Limousine Service Corp., respondents.

Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered on or about May 8, 2017, which, insofar as appealed from as limited by the briefs, denied the motion of defendant Moonlight Towing, Inc. (Moonlight) for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

Plaintiff alleges that he was injured when a vehicle owned by defendant USA Limousine Service Corp. (USA Limousine) came loose from a tow truck and rolled into his vehicle. Although Moonlight maintains that the subject tow truck was not its tow truck, USA Limousine's employee testified that after the vehicle he was driving broke down, a coworker provided him with contact information for Moonlight, which he called, and a tow truck that arrived and left with the vehicle said Moonlight on it. He also identified photographs of the tow truck. Such evidence presents clear credibility issues as to whether the tow truck involved belonged to Moonlight that cannot be resolved on this motion for summary judgment (see e.g. S.J. Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338, 341 [1974]; DeSario v SL Green Mgt. LLC, 105 AD3d 421 [1st Dept 2013]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 19, 2018

CLERK