Demartino v. 3858, Inc.

• Court: New York Supreme Court
• Writing for the Court: DAVID I. SCHMIDT
• Citation: Demartino v. 3858, Inc., 950 N.Y.S.2d 608 (N.Y. Sup. Ct. 2012)
• Decision Date: 16 February 2012
• Docket Number: No. 29297/07.,29297/07.
• Parties: Jamie DeMARTINO a/k/a Jamiie Gullo, Plaintiffs, v. 3858, INC., et al., Defendants.

950 N.Y.S.2d 608

Jamie DeMARTINO a/k/a Jamiie Gullo, Plaintiffs,

v.3858, INC., et al., Defendants.

No. 29297/07.

Supreme Court, Kings County, New York.

Feb. 16, 2012.

Gullo & Associates, Brooklyn, for Plaintiff.

Carcagno & Associates, New York, for Defendants.

Hammill, O'Brien, Croutier, Syosset.

DAVID I. SCHMIDT, J.

Upon the foregoing papers, defendants 8772 Meat Corp. s/h/a 8772 Meat Corp. doing business as Key Food Supermarket (8772), moves for an order, pursuant to CPLR 3212, granting summary judgment dismissing the complaint of plaintiff Jamie DeMartino a/k/a Jamie Gullo and all cross claims of defendant 3858, Inc. (3858) and Hani Othman, Jr. (Mr. Othman), against it.

Facts and Procedural Background

Plaintiff commenced this action against 3858; Mr. Othman; 8772; MBA, Inc.; LDCA, Inc.; FDRA, Inc.; DACB, Inc.; CAR 3579 Corporation; ABR451 Inc.; BACD, Inc.; SADC, Inc.; CAMD, Inc.; PBAC, Inc.; MBAA, Inc; and John Does I–XIII, as the shareholders of the defendant corporations, seeking to recover damages for personal injuries allegedly sustained on July 2, 2006 when she was struck by a vehicle registered to 3858 and operated by Mr. Othman.¹ At the time of the accident, plaintiff was walking in the street near the intersection of Shore Parkway and Bay 19th Street in Brooklyn and Mr. Othman was backing up to park the vehicle that he was operating while delivering groceries. 8772 is the owner of the Key Food Supermarket located at 8772 18th Avenue in Brooklyn; the supermarket entered into an agreement with 3858 to provide delivery services to its customers.

In her complaint, plaintiff alleges that the subject accident was caused by the negligence of the defendant employer and Mr. Othman and that the named corporations are shams and instruments of the shareholders, so that the corporate veils should be pierced and/or that the defendants are involved in a joint venture. Plaintiff goes on to allege that the defendant employer is liable to plaintiff pursuant to the doctrine of respondeat superior; that Mr. Othman was provided with a motor vehicle by 8772; and that he held himself out as delivering groceries for 8772 d/b/a Key Food Supermarket, as his employer. Plaintiff also alleges that 8772 d/b/a Key Food Supermarket and the defendant employer are liable to her for negligent hiring, negligent retention and negligent supervision.

8772's Motion

In support of its motion, 8772 argues that it had noting to do with the subject accident, i.e., discovery has established that Mr. Othman was an employee of 3858; that 3858 owned the vehicle that struck plaintiff; and that since 3858 was retained as an independent contractor, 8772 cannot be held responsible for any negligence on the part of 3858 or its employees. 8772 contends that this conclusion is further supported by the language of its Service Agreement with 3858.²

Plaintiff also relies upon the deposition testimony of Azzam Obeid (Mr. Obeid), who testified that he was the sole owner and shareholder of 8772 and that he recalled hiring 3858 to make deliveries for the store. He further testified that the drivers were employed by 3858; that no one from 8772 was is in charge of the drivers; that when the drivers were not making deliveries, they sat in their car, outside the store; and that 8772 did not have any procedures in place if one of the drivers was involved in an accident. In an affidavit submitted in support of the motion, Mr. Obeid further alleges that 8772 did not control the manner or methods that 3858 used to deliver groceries; that 3858 provided trucks and drivers, loaded the vehicles and delivered the groceries by whatever means they chose; and that 3858 maintained its trucks/cars and paid all associated expenses.

Plaintiff also relies upon the deposition testimony of Mr. Othman, who explained that he answered an ad in the newspaper to get the job, that he made deliveries at the direction of a man named Sal and that he was paid in cash by Sal at the end of the day. He worked one day a week, either Saturday or Sunday. Mr. Othman further testified that Key Food was not his boss and that 3858 had other clients, which he knew because he had been sent to another store.

Finally, plaintiff relies upon the deposition testimony of Nasir Obeid (Mr. Nasir Obeid), Mr. Obeid's son, who testified that 8772 had no control over the drivers provided by 3858. As is also relevant herein, he testified that 3858 “use[s] our vans.”

Plaintiff's Opposition

In opposition to the motion, plaintiff argues that movant fails to make a prima facie showing that Mr. Othman and/or 3858 are not employees of 8772. In this regard, she asserts that the Service Agreement is not dispositive on the issue because it does not include language regarding liability, titles, duties or who is responsible to pay expenses. She thus asserts that the agreement does not evidence a meeting of the minds. In addition, the agreement states that 8772 will pay RR Management Agency Corp each week, but does not state how 3858 would ultimately be paid and its moving papers do not explain the role played by the agency in the arrangement. Moreover, Mr. Obeid testified that he gave a check to the driver each week, which also serves to raise additional issues of fact. Plaintiff goes on to point out that although the agreement states that 3858 will provide delivery services Monday through Saturday, she was injured on a Sunday. Plaintiff accordingly argues that on the day of the accident, Mr. Othman was working for 8772 Meat Corp. d/b/a/ key Food Supermarket, and that 3858 and Key Food are the same company.

In addition, plaintiff contends that Mr. Obeid's testimony that 3858 was responsible for paying all costs associated with the maintenance of their vehicles and that Mr. Othman was never an employee of 8772 and was free to engage in other employment is self-serving. Plaintiff also notes that although Mr. Othman testified that he was paid by Sal, the man who picked him up and dropped him off, there is no evidence to establish that Sal did not work for 8772. Thus, since Mr. Othman reported to work at Key Food, plaintiff contends that it is clear that that was his place of employment and that he worked for 8772. Plaintiff also points out that Mr. Othman told the police officer who responded to the accident that he was working for Key Food; this contention is supported by an affidavit submitted by that officer. Mr. Othman also testified that he would work on Saturday or Sunday, although the Service Agreement provided that 3858 would provide delivery services Monday through Saturday. Also significant is the fact that Mr. Othman testified that he had never heard of 3858. Plaintiff goes on to argue that because Mr. Othman worked a fixed schedule, i.e., every Saturday or Sunday; that an employee of Key Food put the boxes to be delivered by the door, with a tag indicating where the box was to go and providing any special directions; that any complaints regarding delivery would be made to Key Food; and that Mr. Othman would sometimes do a favor for the workers at Key Food by picking up food for them to argue that Key Food controlled Mr. Othman's work. It must also be noted that there is no evidence presented by 3858 to demonstrate that Mr. Othman was its employee.

Further, plaintiff alleges that Mr. Nasir Obeid's testimony that 3858 used “our vans” also serves to raise an issue of fact. Plaintiff accordingly retained Glen Hallahan, a licensed private investigator, who photographed a delivery vehicle in front of Key Food Supermarket on January 27, 2007 that had the logo of Key Food across the doors. Plaintiff avers that this information also raises an issue of fact with regard to whether 8772 and 3858 are the same corporations.

In addressing the claim of negligent hiring, negligent retention and/or negligent supervision, plaintiff argues that 8772 has not established that it investigated 3858, its employees or its vehicles prior to entering into the Service Agreement.

Finally, plaintiff argues that 8772's motion for summary judgment should be denied because there is outstanding discovery. More specifically, although a court order dated March 13, 2010 directed 3858 to appear for deposition and 8772 to provide proof of payment to 3858, no such discovery has been provided.

8772's Reply

In reply, 8772 refutes each of plaintiff's allegations. In addition, 8772 contends that the opinion offered by Mr. Hallahan should not be considered, since the photographs were not previously disclosed, the information does not pertain to the time of the accident and he is not an expert. It also asserts that since plaintiff filed a note of issue, all further discovery has been waived.

The Law

It is well established that summary judgment may be granted only when it is clear that no triable issues of fact exist (Alvarez v. Prospect Hosp., 68 N.Y.2d 320 [1986] ). The party moving for summary judgment “bears the initial burden of making a prima facie showing of its entitlement to judgment as a matter of law” (Holtz v. Niagara Mohawk Power, 147 A.D.2d 857, 858 [1989] ). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers ( see e.g. Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985];Dat v. City of New York, 271 A.D.2d 635, 635 [2000] ).

Once such a showing has been established, “the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action” (Alvarez, 68 N.Y.2d at 324, citing Zuckerman v. City of New York, 49 N.Y.2d 557, 562 [1980] ). In this regard, it is well settled that:

“A summary judgment motion is governed by a well-established shifting of the burden of proof. A movant's failure to make a prima facie showing of entitlement to judgment as a matter of law requires a denial of the motion, regardless of the...