Ackert v David

Ackert v David 2009 NY Slip Op 08937 [68 AD3d 1238] December 3, 2009 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 10, 2010

Rita Ackert, Respondent, v Francis R. David et al., Defendants, and Kenneth L. Thomas III, Appellant.

—[*1] Fitzgerald, Morris, Baker & Firth, P.C., Glens Falls (Martin A. Cohen of counsel), for appellant.

Martin, Harding & Mazzotti, L.L.P., Niskayuna (Ronald B. Orlando of counsel), for respondent.

McCarthy, J. Appeal from an order of the Supreme Court (Hall, Jr., J.), entered June 11, 2009 in Washington County, which denied a motion by defendant Kenneth L. Thomas III to dismiss the complaint against him.

Plaintiff brought this action for injuries sustained as a passenger in a car driven by her husband which collided with a trailer pulled by a farm tractor operated by defendant Francis R. David and owned by defendant Kenneth L. Thomas III, David's employer. Thomas appeals the denial of his motion pursuant to CPLR 3211 (a) (7) for an order dismissing plaintiff's complaint against him.

Thomas argues that, as the owner of a tractor used exclusively for agricultural purposes, he is exempt from statutorily imposed vicarious liability for the negligence, if any, on the part of David (see Vehicle and Traffic Law § 388). Supreme Court properly denied the motion given that the complaint [*2]sufficiently pleaded a cause of action against Thomas and the parties have not yet engaged in discovery to determine whether Thomas's defense under Vehicle and Traffic Law § 388 (2) is applicable, notwithstanding affidavits from Thomas and David submitted in support of the motion (see Valentino v County of Tompkins, 284 AD2d 898, 899 [2001]; Henbest & Morrisey v W.H. Ins. Agency, 259 AD2d 829, 830 [1999]).

Cardona, P.J., Spain, Lahtinen and Stein, JJ., concur. Ordered that the order is affirmed, with costs.