Lynch v. Baker
| Decision Date | 06 April 2016 |
| Docket Number | 2014-05356, Index No. 35497/10. |
| Citation | 30 N.Y.S.3d 126,2016 N.Y. Slip Op. 02622,138 A.D.3d 695 |
| Parties | Michael Scott LYNCH, appellant, v. Robert V. BAKER, defendant, Robert Wenig, et al., respondents. |
| Court | New York Supreme Court — Appellate Division |
138 A.D.3d 695
30 N.Y.S.3d 126
2016 N.Y. Slip Op. 02622
Michael Scott LYNCH, appellant,
v.
Robert V. BAKER, defendant,
Robert Wenig, et al., respondents.
2014-05356, Index No. 35497/10.
Supreme Court, Appellate Division, Second Department, New York.
April 6, 2016.
Davis & Ferber, LLP, Islandia, NY (Cary M. Greenberg of counsel), for appellant.
Connor & Magee, Rockville Centre, NY (Peter T. Connor of counsel), for respondents.
George F. Sacco, Mineola, NY (Corey Pugliese of counsel), for defendant Robert V. Baker.
JOHN M. LEVENTHAL, J.P., THOMAS A. DICKERSON, JOSEPH J. MALTESE, and COLLEEN D. DUFFY, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Mayer, J.), entered April 29, 2014, as granted that branch of the motion of the defendants Robert Wenig and Hertz Vehicles, LLC, which was for summary judgment dismissing the complaint insofar as asserted against the defendant Hertz Vehicles, LLC, and denied the plaintiff's cross motion for leave to serve an amended bill of particulars with respect to the defendant Hertz Vehicles, LLC.
ORDERED that the order is reversed insofar as appealed from, on the law and the facts, with costs, that branch of the motion of the defendants Robert Wenig and Hertz Vehicles, LLC, which was for summary judgment dismissing the complaint insofar as asserted against the defendant Hertz Vehicles, LLC, is denied, and the plaintiff's cross motion for leave to serve an amended bill of particulars with respect to the defendant Hertz Vehicles, LLC, is granted.
The plaintiff, a Suffolk County police officer, alleges that he was injured in the early morning hours of October 8, 2009, as a result of an automobile accident that occurred when he was engaged in a high-speed pursuit of the defendant Robert V. Baker, who was operating a Chevrolet owned by the defendant Hertz Vehicles, LLC (hereinafter Hertz). In his deposition testimony, Baker admitted that his driver license had been suspended prior to the October 8 accident, and as a result, he attempted to evade the plaintiff rather than pull over when the plaintiff attempted to stop him.
Two weeks prior to the October 8 accident, Hertz had rented a different vehicle, a Ford, to Robert Wenig, Baker's grandfather, while Wenig's car was being serviced at the car dealership where the Hertz dealer was housed. Baker had accompanied Wenig and been present when the Ford was rented. The Ford had been returned to Hertz two days later.
It is undisputed that the Chevrolet involved in the October 8 accident was not rented by Wenig, or with his knowledge or permission. Instead, on the day before the October 8 accident, the same Hertz rental agent who had rented the Ford to Wenig gave Baker the Chevrolet. According to Baker, Hertz gave him the Chevrolet because the repairs to Wenig's car had not been completed. The Hertz rental agent did not ask Baker to provide his driver license before giving him the keys to the Chevrolet. The rental agent testified at his deposition that he did not follow Hertz procedures to ensure that the driver license and credit card matched up with the person present at the time of rental.
In its answer to the plaintiff's amended complaint, Hertz denied that it had rented the Chevrolet to Wenig. It also denied that Baker operated the Chevrolet with the consent and permission of Hertz.
Following the conclusion of discovery, Wenig and Hertz (hereinafter together the Hertz...
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