Loughery v. Future Century Limousine, LLC

• Decision Date: 24 September 2013
• Docket Number: 11 Civ. 5108 (PGG)
• Parties: KAREN LOUGHERY, Plaintiff, v. FUTURE CENTURY LIMOUSINE, LLC, d/b/a FUTURE LIVERY, SHADYS ENTERPRISES, LLC and ROBERT SWIFT, Defendants.
• Court: U.S. District Court — Southern District of New York

KAREN LOUGHERY, Plaintiff, v. FUTURE CENTURY LIMOUSINE, LLC, d/b/a FUTURE LIVERY, SHADYS ENTERPRISES,LLC and ROBERT SWIFT, Defendants.

11 Civ. 5108 (PGG)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

Dated: September 24, 2013

MEMORANDUMOPINION & ORDER

PAUL G. GARDEPHE, U.S.D.J.:

Plaintiff Karen Loughery hired Defendant Future Century Limousine, LLC, d/b/a Future Livery ("Future") to drive her and her guests from Easton, Connecticut to Manhattan, and back. Future "farmed-out" the return trip to Shadys Enterprise, LLC ("Shadys"), another limousine company, and one of its drivers, Robert Swift. On the return trip, and while in Connecticut, the van in which Plaintiff and her guests were riding veered off the road, struck a tree and light pole, and flipped over. Plaintiff suffered serious injuries.

On October 25, 2011, Plaintiff filed an Amended Complaint against Future, Shadys, and Swift. (Dkt. No. 21)¹ The Amended Complaint includes, inter alia, a direct negligence claim against all Defendants, a vicarious liability/negligence claim against Future, and a negligent hiring claim against Future. (Am. Cmplt., First, Second, Fourth Causes of Action) On November 4, 2011, Shadys and Swift answered the amended complaint and subsequently filed cross-claims against Future. (Dkt. No. 16)

Plaintiff has moved for summary judgment on the issue of liability as against all three defendants. (Dkt. No. 33) Future has moved for summary judgment on Plaintiff's claimsagainst it, and on Shadys and Swift's cross-claims against Future. (Dkt. No. 36) For the reasons stated below, Plaintiff's motion will be granted in part and denied in part,² and Future's motion will be granted in part and denied in part.³

BACKGROUND

I. PLAINTIFF'S RESERVATION WITH FUTURE AND FUTURE'S RETENTION OF SHADYS

On September 22, 2010, Plaintiff Loughery made a reservation with Future to transport herself and several guests from Easton, Connecticut to Pacha, a nightclub in Manhattan, with a stop in the Bronx. (Def. R. 56.1 Stmt. ¶ 94)⁴ Plaintiff booked the trip for the evening of October 2, 2010. (Id.) Loughery arranged for a pick-up at Pacha on October 3, 2010 at 2:30 a.m., for the return trip to Easton - again with a stop in the Bronx. (Def. R. 56.1 Stmt. ¶ 95; Pltf. R. 56.1 Stmt. ¶¶ 16-17)

Plaintiff made her reservations through Future's website (Pltf. R. 56.1 Stmt. ¶ 12), and paid Future $551.07 for its services. (Pltf. R. 56.1 Stmt. ¶ 19) During the evening of October 1, 2010, the day before the trip, Future assigned the job to "Gino," one of its drivers. (Def. R. 56.1 Stmt. ¶ 97; Pltf. R. 56.1 App., Ex.13; Pltf. R. 56.1 Stmt. ¶ 27) Later on October 1, 2010 - at a family gathering - Karim Douich, Future's owner, arranged for the return trip to be performed by a Shadys driver, rather than by "Gino." (Pltf. R. 56.1 Stmt. ¶ 28; Pltf. R. 56.1 App., Ex. 13) Shadys is owned by Douich's wife's cousin's husband. (Id. ¶¶ 29, 30) Future had "farmed-out" one other job to Shadys, in May 2010; Shadys has never sent work to Future. (Def. R. 56.1 Stmt. ¶ 102) Future did not at that time inform Plaintiff that it had "farmed-out" the return trip to Shadys. (Id. at 28, 29)

Future provided Shadys with the necessary information for the return trip, including Plaintiff's name and cell phone number; the date, time and place of pick-up of Plaintiff and her guests; the return stop in the Bronx; and the final destination in Easton. (Pltf. R. 56.1 Stmt. ¶¶ 35, 36; Pltf. R. 56.1 App., Ex. 15) Shadys agreed to perform the return trip for $200, to be paid by Future. (Id. ¶ 33; Def. R. 56.1 Stmt. ¶101)

III. THE ACCIDENT AND PLAINTIFF'S INJURIES

On the evening of October 2, 2010, Plaintiff and her guests were picked-up in Easton by a man driving a beige or gray van. (Pltf. R. 56.1 Stmt. ¶ 44) The van had no signage, but the driver told Plaintiff that he was from Future and confirmed the destination address with her. (Pltf. R. 56.1 Stmt. ¶¶ 43-44, 46)

Between 3:00 and 3:30 a.m., Plaintiff and her guests left Pacha. (Id. ¶ 47) They met Defendant Robert Swift, who was sitting outside the club in a van. (Id. ¶ 48) According to Plaintiff, the van looked like the same van that had picked them up in Easton. (Id. ¶ 56)

The parties dispute whether Swift told Plaintiff that he was from Future. Plaintiff testified that Swift told her that he was from Future and that he knew where to go. (Pltf. R. 56.1 App., Ex. 6 (Loughery Dep.) at 53-57; Pltf. R. 56.1 Stmt. ¶¶ 49-50) Swift testified that "[s]omebody did come up to the van when I was sitting out there. And they were like, areyou the guy that's supposed to bring us to Connecticut? And I was like, yes." (Pltf. R. 56.1 App., Ex. 18 (Swift Dep.) at 45) Swift also testified that it is his practice never to discuss with a customer what company he is working for.⁵ (Pltf. R. 56.1 App., Ex. 18 (Swift Dep.) at 45)

When Plaintiff approached Swift, the hood of the van was up, and he appeared to be having trouble with the battery. (Pltf. R. 56.1 Stmt. ¶ 54) Swift told Plaintiff that he needed a boost. (Id. ¶ 55) Plaintiff then called Future to complain, and spoke with Douich. (Id. ¶¶ 58, 61) Douich told Plaintiff that Future did not have another van that could accommodate her party. (Id. ¶ 59) The parties dispute other aspects of this conversation.

Douich testified that he told Plaintiff "to just calm down, it's not my driver, it's, you know, it's - I'm going to find out what's going on, it's not my vehicle, it's not my driver, I'm going to find out what's going on." (Pltf. R. 56.1 App., Ex. 11 (K. Douich Dep.) at 151-54) Plaintiff denies this account, and claims that she did not learn until long after the accident that the van and driver were not from Future. (Pltf. R. 56.1 Stmt. ¶ 40) In any event, after his conversation with Plaintiff, Douich called Shadys to find out what was wrong with the van. (Pltf. R. 56.1 App., Ex. 11 (K. Douich Dep.) at 153)

At approximately 4:25 a.m., Swift succeeded in starting the van. (Pltf. R. 56.1 Stmt. ¶ 60) By that time, three of Plaintiff's guests had left in a cab. (Id.) Swift called Douichto tell him that he had gotten the van started and that they were on their way back to Easton. (Id. ¶ 63)

Swift drove the van onto Interstate 95 and entered Connecticut, where Plaintiff felt the van veer off the road. (Id. ¶ 67) The van collided with a tree and light pole on the right shoulder of Interstate 95, rolling over and then resting on its side. (Id. ¶¶ 71-76) Police and emergency workers arrived at the scene. The police prepared an accident report, which states that the accident occurred in Greenwich, Connecticut, near exit 5 on Interstate 95, Northbound. (Id. ¶ 72) The accident report identifies the driver as Robert Swift and the owner of the van as Shadys Enterprises, and concludes that Swift was at fault. (Id. ¶¶ 73, 82)

"Kawtar," a Shadys driver, called Douich to tell him about the accident. (Id. ¶ 84) Douich then called Shadys' owner, who told Douich that he had seen the van overturned on the highway. (Id. ¶ 85) Douich also called Swift and Plaintiff, but neither answered their phones. (Id. ¶ 86)

Plaintiff suffered a "degloving" injury to her right foot and ankle and a fracture to her toe. (Id. ¶ 89) These injuries caused Plaintiff severe pain. (Id. ¶ 87) She was in the hospital for three weeks, and underwent several surgeries during that time. (Id. ¶ 91)

IV. PROCEDURAL BACKGROUND

On March 30, 2011, Plaintiff filed this action in Supreme Court of the State of New York, Bronx County. (Dkt. No. 1) Future removed the case to this Court (Dkt. No. 1), and on July 29, 2011, Future filed a third-party complaint against Shadys and Swift. (Dkt. No. 6) On September 21, 2011, Shadys and Swift asserted a counterclaim against Future. (Dkt. No. 12) On October 25, 2011, Plaintiff filed an Amended Complaint against Future, and addedShadys and Swift as defendants. (Dkt. No. 21) Shadys and Swift answered the amended complaint and filed cross-claims against Future on November 4, 2011. (Dkt. No. 16)

On October 15, 2012, Plaintiff moved for summary judgment on liability as to all Defendants. (Dkt. No. 33) On October 15, 2012, Future moved for summary judgment on Plaintiff's claims against it, and on Shadys and Swift's cross-claims against Future. (Dkt. No. 36)

DISCUSSION

I. SUMMARY JUDGMENT STANDARD

Under Federal Rule of Civil Procedure 56(a), summary judgment is warranted where the moving party "shows that there is no genuine dispute as to any material fact" and that it "is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "A dispute about a 'genuine issue' exists for summary judgment purposes where the evidence is such that a reasonable jury could decide in the non-movant's favor." Beyer v. Cnty. of Nassau, 524 F.3d 160, 163 (2d Cir. 2008).

A court deciding a summary judgment motion must "'resolve all ambiguities, and credit all factual inferences that could rationally be drawn, in favor of the party opposing summary judgment.'" Spinelli v. City of New York, 579 F.3d 160, 166 (2d Cir. 2009) (quoting Brown v. Henderson, 257 F.3d 246, 251 (2d Cir. 2001)). However, a "'party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment. . . .[M]ere conclusory allegations or denials . . . cannot by themselves create a genuine issue of material fact where none would otherwise exist.'" Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (alterations in original) (quoting Fletcher v. Atex, Inc., 68 F.3d 1451, 1456 (2d Cir. 1995)).

"The same standard applies where, as here, the parties filed cross-motions for summary judgment. . . ." Morales v. Quintel Entm't, Inc., 249 F.3d 115, 121 (2d Cir. 2001). "[W]hen both parties move for summary judgment, asserting the absence of any genuine issues of material fact, a court need not enter judgment for either party. Rather, each party's motion must be examined on its own merits, and in each case all reasonable inferences must be...