Barak v Chen

[*1] Barak v Chen 2009 NY Slip Op 52583(U) [25 Misc 3d 1244(A)] Decided on December 21, 2009 Supreme Court, Queens County Siegal, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 21, 2009
Supreme Court, Queens County

Jacob Barak, Dana Barak and Lara Barak, Plaintiff(s),

against

Kevin Chen and Carmel Car and Limousine Service, Inc., Defendant(s).



Jacob Barak, Dana Barak and Lara Barak, Plaintiff(s), against -

against

Fast Operating Corp. And Avik Kabessa Defendant(s).



17848/07

Bernice Daun Siegal, J.

Defendant, Carmel Car and Limousine Service Inc. ("Carmel") brings this motion for an order pursuant to CPLR §602(a) consolidating the above action with the action filed under Queens Count Supreme Court Index Number 510/09 and granting the defendant leave of the court pursuant to CPLR §3212(a), to file a late motion for summary judgment and granting defendant, Carmel, summary judgment on the issue of liability pursuant to CPLR §3212(b).

CONSOLIDATION

Motion by attorney for defendants, Carmel Car and Limousine Service Inc., to consolidate Action No. 1 and Action No. 2 under Index Number 17848/07, for all purposes, is granted without opposition.

The court notes that the parties submitted a stipulation to the court on November 16, [*2]2009, indicating that they wish the matter be consolidated, for all purposes, under the 17848/07 Index Number.

The title and Index Number of the consolidated action shall be:  1;

X

JACOB BARAK, DANA BARAK AND LARA BARAK,

Action No.1:

Index No. 17848/07

Plaintiff(s),

-against-

KEVIN CHEN, CARMEL CAR AND LIMOUSINE

SERVICE, INC. AND FAST OPERATING CORP.

AND AVIK KABEESA.

Defendant(s).  1;

X

Defendant is directed to serve a certified copy of this order with notice of entry, pursuant to CPLR §602(a), upon all parties to the actions consolidated, on the Clerk of Queens County and, at the time of filing of the Note of Issue, on the Clerk of the Trial Term/Trial Scheduling Office. The Clerk of the Court, upon being served with a Certified Copy of this Order with Notice of Entry, is directed to transfer all papers filed under Index Number 510/09 to the file of Index Number 17848/07.



FACTS

Plaintiffs original complaint in Action No.1 states causes of action for personal injuries allegedly sustained as a result of a motor vehicle accident on February 14, 2007, when plaintiffs were passengers in the vehicle owned and operated by defendant, Kevin Chen (hereinafter "Chen"). The accident is alleged to have occurred in the southbound Route 1/9 near Frontage Road in Newark, New Jersey. The deposition testimony of the plaintiffs and defendant Chen indicate that this was a one car motor vehicle accident wherein Chen lost control of his vehicle.

Plaintiffs have alleged that the defendant, Carmel Car & Limousine Service (hereinafter "Carmel"), is liable for the accident primarily because they were the employer of Chen.

LEAVE TO FILE A LATE MOTION FOR SUMMARY JUDGMENT

Pursuant to CPLR §3212(a), a motion for summary judgment must be made within 120 days after the note of issue is filed, unless a different date is set by the Court, "except with leave of court on good cause shown." Contrary to the argument of counsel for the City, "good cause" means a satisfactory explanation for the delay in making the motion, rather than a showing of merit and lack of prejudice (see Brill v. City of New York, 2 NY3d 648 [2004]).

In the instant action, a preliminary conference was held on February 11, 2008, wherein the parties agreed that any motion for summary judgment shall be made no later than 120 days [*3]after the filing of the note of issue. The note of issue was filed on January 20, 2009. The instant motion was filed on June 25, 2009. However, the defendant's assert that they filed a timely motion for summary judgment on May 11, 2009 and attach a stamped copy of the Notice of Motion and a receipt from the Queens County Clerks Office. The defendant asserts that they appeared for the motion on June 10, 2009, however, the case did not appear on the calendar. Accordingly, defendant Carmel, has shown good cause for filing a late summary judgment motion.

DEFENDANT CARMEL'S MOTION FOR SUMMARY JUDGMENT ON THE ISSUE OF LIABILITY

Chen testified at deposition that he owned the vehicle he was operating at the time of the accident.(Exhibit S, p.7, line 16). Chen also testified that he maintained the vehicle and was not the employee of Carmel. (p. 13, line 11.) Chen further testified that he decides what days he works and how many hours he works and when he wants to take a vacation.

In addition, John Roberts, General Manager of Operations of Carmel, (hereinafter "Roberts") testified that Chen was not an employee of Carmel.

Plaintiffs assert that the process by which a customer obtains a driver from Carmel is as follows: the customer calls Carmel to obtain a vehicle; the driver chooses to put themselves on a waiting list for bids; when it is the drivers turn on the wait list; Carmel's automated dispatch system sends the bid to the driver and if the driver chooses to accept the bid; and then the driver completes the job, collects the fare and pays a percentage to Carmel. Roberts also testified that Carmel does not provide insurance for the drivers, Carmel does not inspect or maintain the vehicles, does not provide a vehicle to the affiliated drivers, nor does Carmel own any of the vehicles that the drivers operate.

Pursuant to Vehicle and Traffic Law §388, "[e]very owner of a vehicle used or operated in this state shall be liable and responsible for death or injuries to person or property resulting from negligence in the use or operation of such vehicle, in the business of such owner or otherwise, by any person using or operating the same with the permission, express or implied, of such owner." Based on Chen and Robert's deposition testimony, Chen owned the subject vehicle and not Carmel. Accordingly, Carmel cannot be held liable pursuant to VTL §388.

However, it is well settled that an employer may be vicariously liable for its employees' tortious acts on a theory of respondeat superior if the acts were committed in the furtherance of the employer's business and within the scope of employment. (Schiffer v Sunrise Removal Inc., 62 AD3d 776 [2nd Dept May 12, 2009].) Whether an actor is an independent contractor or employee is generally a factual issue for a jury. (Id. at 779). However, where there is no conflict in the evidence, the question may properly be determined as a matter of law . (Shapiro v. Robinson, 63 NY2d 896 [1984].)

Defendant Carmel argues that the most crucial factor in determining when a relationship will give rise to vicarious liability, is control over the results produced or the means used to achieve the results. (See Devlin v. City of New York, 254 AD2d 16 [1st Dept 1998]). Based upon the depositions, Carmel has established, prima facie, that Chen was acting as an independent contractor at the time of the accident. The burden now shifts to the plaintiff to raise [*4]a triable issue of fact.

In opposition, plaintiffs argue that while Devlil may be controlling, the Appellate Division therein underscored an additional factor in determining to whether vicarious liability should lie, and that is, whether the business held itself out to the public as being the employer of its drivers. (See Devlin v. City of New York, 254 AD2d 16 [1st Dept 1998].) In Devlin, the court determined that there are issues of fact as to whether defendant Charge a Ride, created the impression that it was the employer, stating that "[i]t is not impossible to imagine that one of the reasons that an individual would use a service such as Charge a Ride rather than hailing a cab would be the impression that it could rely on the fact that a long standing firm would be adequately insured." (Devlin v. City of New York, 254 AD2d 16, 17 [1st Dept 1998].)

Chen testified at his deposition that he was expected to wear a uniform by the manager of Carmel and that a "Carmel" sign would be placed on the car by an employee of Carmel.

In addition, Roberts testified at his deposition that Carmel ordered the service via a coupon which includes that "Carmel, We will be there for you." Finally, plaintiff, Jacob Barak, testified that he believed that the driver was employed because whenever he called Carmel, they would say that "our driver will be there, our driver, our car will be there."

Based on the foregoing, there are issues of fact for trial as to whether Chen was an independent contractor or an employee of Carmel. (Schiffer v Sunrise Removal Inc., 62 AD3d 776 [2nd Dept May 12, 2009].) Accordingly, defendant Carmel's motion for summary judgment is denied.

PLAINTIFFS' CROSS-MOTION FOR SUMMARY JUDGMENT AGAINST CHEN AND CARMEL CAR AND LIMOUSINE SERVICE

Plaintiffs cross-move for summary judgment against Chen on the issue of liability. Pursuant to CPLR §3212(a), a motion for summary judgment must be made within 120 days after the note of issue is filed, unless a different date is set by the Court, "except with leave of court on good cause shown." As discussed earlier, "good cause" means a satisfactory explanation for the delay in making the motion, rather than a showing of merit and lack of prejudice. (see Brill v. City of New York, 2 NY3d 648 [2004].) Failure to offer such an explanation leaves the court no option but to deny the motion as untimely. (Rivers v. City of New York, 37 AD3d 804 [2nd Dept 2007].) Accordingly, as Plaintiffs failed to seek leave of this court to file a late motion for summary judgment nor have they shown good cause for such delay in bringing the within motion for summary judgment on the issue of liability more than 120 days after the note of issue, the cross motion against Chen must be denied.

As for the summary determination of liability against Carmel, while the court will not entertain the cross motion as it is untimely, the court notes that it has ruled above that Carmel's status in relation to Chen is a matter for the jury.

CONCLUSION

For the reasons set forth above, Defendant Carmel Car and Limousine Service's motion for an order pursuant to CPLR §602(a) consolidating the above actions under Queens Count Supreme Court Index Number 17848/07 and granting the defendant leave of the court pursuant to CPLR §3212(a), to file a late motion for summary judgment are granted, however, Carmel's motion for summary judgment on the issue of liability pursuant to CPLR §3212(b) is denied. [*5]

Plaintiffs' cross-motion for summary judgment on the issue of liability is denied as untimely.

Dated: December 21, 2009_____________________________

Bernice D. Siegal, J.S.C.

OCA e-submission: no Judge E-Mail