Gottlieb v Stern

[*1] Gottlieb v Stern 2007 NY Slip Op 51331(U) [16 Misc 3d 1107(A)] Decided on June 19, 2007 Supreme Court, Queens County Elliot, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 19, 2007
Supreme Court, Queens County

Terri Gottlieb, et al.

against

Jerry B. Stern, et al.



76552005



Attys McBride & Berdnik - D

Marshal Bluth, Esq.- P

Zawacki, Everett, Gray & McLaughlin - D

David Elliot, J.

Plaintiffs in this negligence action seek damages for personal injuries sustained by Terri Gottlieb in an automobile accident on April 14, 2004, at International Boulevard in Mahwah, New Jersey. On the said date, Jerry B. Stern was driving a sport utility vehicle owned by his employer, Paramus, when he collided into a vehicle operated by Teri Gottlieb. The action of Stuart J. Gottlieb is derivative. The undisputed record indicates that Stern was intoxicated and [*2]driving in the wrong direction on a one-way street when he struck Gottlieb's vehicle head-on.

Paramus seeks dismissal of the complaint insofar as asserted against them on the grounds that any alleged liability on their part, resulting from the use or operation of the vehicle owned by Paramus, is vicarious in nature and arises solely out of the ownership of the vehicle; and that New Jersey law applies and does not permit plaintiffs' vicarious liability claim against them. Plaintiff opposes the motion.

New York law provides that a plaintiff who is seriously injured in an automobile accident may recover damages for non-economic loss (see Insurance Law § 5104[a]), and that the owner of a vehicle used or operated in New York, that was the cause of the plaintiff's injuries, is vicariously liable for such damages (see Vehicle and Traffic Law § 388). New Jersey law provides that a vehicle owner is vicariously liable only if the driver was the employee or agent of the owner (see Haggerty v Cedeno, 279 NJ Super 607, 653 A2d 1166 [NJ Super AD, 1995]). Thus, the initial issue presented is what law applies to plaintiff's New York action to recover damages for personal injuries.

In resolving choice of law questions in negligence cases, New York has long applied an "interest analysis" in an attempt to assess which jurisdiction "has the greatest concern with, or interest in, the specific issue raised in the litigation" (Neumeier v Kuehner, 31 NY2d 121, 127 [1972]; cf. Cooney v Osgood Mach., 81 NY2d 66 [1993]). Here, the Paramus vehicle was owned by a New Jersey corporation and was delivered to its employee, Stern, in the state of New Jersey. The vehicle was registered and insured in New Jersey and the accident occurred in New Jersey. The plaintiffs merely reside(d) in New York. New Jersey's prevailing interest in the application of its law here is premised upon the fact that the vehicle involved in the accident is owned by its domiciliary, Paramus, the party whose liability is primarily in issue here, and the vehicle is registered and insured in New Jersey (see Haggerty v Cedeno, supra). Thus, under these circumstances, New Jersey law applies.

Plaintiff seeks to impose liability on Paramus as the owner of the vehicle on the theory that Stern was acting as Paramus' agent when the accident occurred. Paramus specifically denies agency. Paramus' liability to plaintiff could only be established if Stern was, in fact, acting as Paramus' agent in operating his car when the accident occurred (id.). To establish agency, plaintiff relies upon the (New Jersey) rule of law which states that use of an automobile upon a public highway by one who is not its owner raises a presumption of agency between the operator and the owner (see Harvey v Craw, 110 NJ Super 68, 264 A2d 448 [NJ Super AD, 1970]). Under New Jersey law, this presumption is one of fact, and it can be rebutted by a defendant-owner (id.).

To prevent the issue of agency from reaching the jury, the owner must show, by uncontradicted testimony, that no employer-employee or principal-agent relationship existed, or, if one did exist, that the employee or agent had transgressed the bounds of his authority (Harvey v Craw, supra; Nicosia v Marangi, 13 NJ Super 550, 81 A2d 20 [NJ Super AD, 1951]). In the case at bar, Paramus presented evidence indicating that Stern was not working on the day of the [*3]accident (it was his day off), and that Stern was intoxicated and not acting in the course of his employment when the collision occurred. In opposition, however, Stern submitted copies of excerpts of an "Employee Demonstrator Agreement," which states, at paragraph 10, as follows:

"To achieve maximum visibility of the Employer's product, the employee may drive any vehicle covered by this Agreement to and from religious and civic functions, shopping, etc. within the Employer's marketing area during normal business hours and reasonable off hours ...."

As noted by the court in Gilborges v. Wallace, 78 NJ 342 at 351: "However, this State has adopted the dual purpose' rule so that where the trip serves the servant's private affairs and also is in furtherance of the master's business, the master is subject to liability for the servant's actions. Cinque v. Crown Oil Corp., 135 N.J.L. 38, 40-41, 48 A.2d 777 (E. & A. 1946); 1 Restatement, Agency 2d, s 236 at 523 (1958). Also, where the instrumentality being used by the servant is owned by the master, such use raises a rebuttable presumption that the servant was acting within the scope of employment. Cucci v. Jaldini, 141 N.J. Super, 297 300, 358 A.2d 201 (App. Div. 1976)."

Viewing the evidence in the light most favorable to plaintiff, this court concludes that "reasonable minds could differ" as to whether there was a dual purpose in defendant Stern's operation of the vehicle and whether there was an agency relationship at the time so as to impose liability upon Paramus (Gilborges v Wallace, supra). Accordingly, the motion by the Paramus defendant for summary judgment, dismissing the complaint insofar as asserted against them, is denied.

Dated: June 19, 2007

J.S.C.