Christ v. Ongori
| Decision Date | 22 March 2011 |
| Parties | George CHRIST, Jr., etc., respondent, v. Evelyne K. ONGORI, et al., defendants, Mark IV Transportation and Logistics, appellant. |
| Court | New York Supreme Court — Appellate Division |
82 A.D.3d 1031
George CHRIST, Jr., etc., respondent,
v.
Evelyne K. ONGORI, et al., defendants,
Mark IV Transportation and Logistics, appellant.
Supreme Court, Appellate Division, Second Department, New York.
March 22, 2011.
White Fleischner & Fino, LLP., New York, N.Y. (Allan P. White of counsel), for appellant.
Sullivan Papain Block McGrath & Cannavo, P.C., New York, N.Y. (Stephen C. Glasser of counsel), for respondent.
A. GAIL PRUDENTI, P.J., RANDALL T. ENG, ARIEL E. BELEN, and SANDRA L. SGROI, JJ.
In a consolidated action to recover damages for personal injuries and wrongful death, the defendant Mark IV Transportation and Logistics appeals from an order of the Supreme Court, Nassau County (Diamond, J.), entered July 12, 2010, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it.
ORDERED that the order is affirmed, with costs.
The plaintiff's decedent was killed when the motorcycle he was operating collided with a delivery truck driven by the defendant Tom Barongo Ongori (hereinafter Ongori) and owned by Ongori's former wife, the defendant Evelyne Ongori (hereinafter together the Ongoris). The plaintiff commenced this action on behalf of the decedent's estate against the Ongoris. Thereafter, the plaintiff commenced a separate action against the defendant Mark IV Transportation and Logistics (hereinafter Mark IV), alleging that Mark IV was liable for Ongori's negligence under the doctrine of respondeat superior. The actions were consolidated. Mark IV then moved for summary judgment dismissing the complaint insofar as asserted against it on the ground that it did not employ Ongori and, therefore, it was not liable for Ongori's negligence. The Supreme Court denied the motion. We affirm.
Contrary to Mark IV's contention, the evidence it submitted in support of the motion, including, inter alia, Ongori's deposition testimony and the independent contractor's agreement between Ongori and Mark IV, did not eliminate all triable issues of fact as to whether Ongori was an independent contractor when the accident occurred ( see Carrion v. Orbit Messenger, 82 N.Y.2d 742, 744, 602 N.Y.S.2d 325, 621 N.E.2d 692; Rivera v. Fenix Car Serv. Corp., 81 A.D.3d 622, 916 N.Y.S.2d 169; Montanaro v. Hossain, 74 A.D.3d 1157, 1157-1158, 902 N.Y.S.2d 426; Anikushina v. Moodie, 58 A.D.3d 501, 501-502, 870 N.Y.S.2d 356; Halpin v. Hernandez, 51 A.D.3d 724, 725, 857 N.Y.S.2d 719; Meyer v. Martin, 16...
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