Allstate Ins. Co. v One Ten Auto Repair Corp.

[*1] Allstate Ins. Co. v One Ten Auto Repair Corp. 2020 NY Slip Op 50724(U) Decided on June 12, 2020 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 12, 2020
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, WAVNY TOUSSAINT, JJ
2018-1245 Q C

Allstate Insurance Company, as Subrogee of Sang Park, Respondent,

against

One Ten Auto Repair Corp., Appellant.

One Ten Auto Repair Corp., appellant pro se. Karen Lawrence, Esq., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered October 20, 2017. The order denied defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, without costs.

Plaintiff, as subrogee of Sang Park (Park), commenced this action in December of 2016 to recover the principal sum $13,995.14, representing the damage sustained to Park's vehicle at defendant's repair shop on June 24, 2016. Defendant moved for summary judgment dismissing the complaint, contending that the damage to Park's vehicle had not been caused by defendant's employees, but instead by plaintiff's authorized agent and inspector, who had been sent by plaintiff to defendant's shop to evaluate the damage to Park's car sustained in a previous motor vehicle accident. Defendant submitted affidavits of its owner and employee, who averred that Park's vehicle had been raised on a lift for repair and that plaintiff's agent was the only one near Park's vehicle when it fell off the lift. While neither averred in their affidavits that they had witnessed the car falling from the lift, they asserted that plaintiff's agent had to have mishandled the lift. Plaintiff's counsel opposed the motion, stating that defendant had failed to submit an affidavit of its mechanic who had placed Park's vehicle on the lift, that the allegation that plaintiff's agent mishandled the lift is just an assumption, and that defendant had failed to show that it was free from negligence. By order entered October 20, 2017, the Civil Court denied defendant's motion.

While defendant attempted to show that the accident was solely caused by plaintiff's agent's negligence, such assertion was based purely on speculation, as it was not supported by [*2]anyone with personal knowledge. As defendant failed to make a prima facie showing that it was free from negligence, defendant's motion for summary judgment dismissing the complaint was properly denied.

Accordingly, the order is affirmed.

ALIOTTA, P.J., ELLIOT and TOUSSAINT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 12, 2020