Paterno v. Strimling

• Decision Date: 13 June 2013
• Citation: 107 A.D.3d 1233,2013 N.Y. Slip Op. 04416,968 N.Y.S.2d 643
• Parties: Michael A. PATERNO et al., Respondents, v. Steven M. STRIMLING et al., Defendants, and Gateways Organization, Inc., Appellant.
• Court: New York Supreme Court — Appellate Division

107 A.D.3d 1233

968 N.Y.S.2d 643

2013 N.Y. Slip Op. 04416

Michael A. PATERNO et al., Respondents,

v. Steven M. STRIMLING et al., Defendants,andGateways Organization, Inc., Appellant.

Supreme Court, Appellate Division, Third Department, New York.

June 13, 2013.

Kral, Clerkin, Redmond, Ryan, Perry & VanEtten, LLP, Melville (James V. Derenze of counsel), for appellant.

Basch & Keegan, Kingston (Derek J. Spada of counsel), for respondents.

Before: ROSE, J.P., LAHTINEN, SPAIN and GARRY, JJ.

LAHTINEN, J.

Appeal from an order of the Supreme Court (Melkonian, J.), entered April 12, 2012 in Ulster County, which, among other things, after a nonjury trial, found in favor of plaintiffs on the issue of the liability of defendant Gateways Organization, Inc. for acts of defendant Steven M. Strimling.

Plaintiffs commenced this action for personal injuries sustained when their vehicle was struck from behind by a vehicle operated by defendant Steven M. Strimling (hereinafter Strimling) and owned by his mother, defendant Phoebe K. Strimling. At the time of the accident, Strimling was running an errand for defendant Gateways Organization, Inc., a not-for-profit corporation that was hosting a religious event for unmarried individuals. In their second amended complaint, plaintiffs asserted, among other things, that Gateways was vicariously liable for the acts of Strimling. Gateways' motion for summary judgment dismissing the second amended complaint was denied by Supreme Court (Egan Jr., J.).

A nonjury trial ensued on the issue of whether Gateways was vicariously liable for Strimling's alleged negligence. Supreme Court (Melkonian, J.) rendered a written decision and order in September 2011 dismissing the action as to Gateways upon the ground that there was no employer-employee relationship betweenGateways and Strimling. In October 2011, plaintiffs moved pursuant to CPLR 4404(b) and 2221 to set aside the verdict, as well as to renew and reargue, on the ground that their theory of vicarious liability at trial had not been premised solely upon an employer-employee relationship, but had also included an assertion and proof that even if Strimling was a volunteer, he was acting as an agent of Gateways. Supreme Court granted plaintiffs' motion, finding that the proof at trial had established “a sufficient degree of direction and control existed over ... Strimling by Gateways to constitute an agency relationship.” ¹ Gateways appeals.

Gateways argues that plaintiffs' motion was defective because no new proof was submitted in support of the motion. Initially, we note that a motion to reargue—as distinguished from a motion to renew—does not require new proof and can be premised upon the court overlooking or misapprehending pertinent facts or law ( see Loris v. S & W Realty Corp., 16 A.D.3d 729, 730, 790 N.Y.S.2d 579 [2005] ). Moreover, since the motion was made following Supreme Court's decision in a nonjury trial, plaintiffs' motion—although citing to both CPLR 2221 and 4404(b)—was, in effect, a motion to set aside a portion of a decision pursuant to CPLR 4404(b) ( see generally Carr–Harris v. Carr–Harris, 98 A.D.3d 548, 551, 949 N.Y.S.2d 707 [2012] ), and a motion under that statute is not limited to situations where new evidence is discovered ( seeCPLR 4404[b] ). Plaintiffs contended in their motion that Supreme Court had misapprehended their theory of liability as being limited to whether there was an employer-employee relationship and failed to fully consider their agency theory of liability. Just as the failure to submit an issue to a jury can constitute an error of law ( see e.g. Shinder v. Altorki, 309 A.D.2d 799, 799, 765 N.Y.S.2d 522 [2003] ), a court's decision after a nonjury trial that misapprehends the theory of liability and fails to address a key component thereof can provide a ground for the court to set aside its decision pursuant to CPLR 4404(b).

We find unpersuasive Gateways' further contention that plaintiffs had not asserted the principal-agent theory of liability prior to making their motion to set aside the decision. The second amended complaint...