Toscarelli v. Purdy

• Decision Date: 20 July 1995
• Citation: 629 N.Y.S.2d 833,217 A.D.2d 815
• Parties: Victor G. TOSCARELLI, Respondent, v. James H. PURDY et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 833

629 N.Y.S.2d 833

217 A.D.2d 815

Victor G. TOSCARELLI, Respondent, v. James H. PURDY et al., Appellants.

Supreme Court, Appellate Division Third Department.

July 20, 1995.

MacVean, Lewis, Sherwin & McDermott (George F. Roesch, III, of counsel), Middletown, for James H. Purdy and another, appellants.

Clark, Gagliardi & Miller (Lawrence D'Aloise Jr. of counsel), White Plains, for General Motors Acceptance Corp., appellant.

Lustig & Brown (Melinda W. Ebelhar, of counsel), Buffalo, for Robert J. McCrann and another, appellants.

Gary Greenwald, Goshen, for respondent.

Before CARDONA, P.J., and MERCURE, WHITE, PETERS and SPAIN, JJ.

MERCURE, Justice.

Appeals (1) from a judgment of the Supreme Court (Bradley, J.), entered April 12, 1994 in Sullivan County, upon a verdict rendered in favor of plaintiff, and (2) from an order of said court, entered May 5, 1994 in Sullivan County, which, inter alia, denied certain defendants' motions to set aside the verdict.

Laura Tucker purchased an automobile and financed it through a North Carolina office of defendant General Motors Acceptance Corporation (hereinafter GMAC). Tucker thereafter moved to New York and, when Tucker became seriously delinquent in her payments, GMAC assigned the account to its Orange County office for collection. On May 17, 1991, with the loan payments about to become three months overdue, GMAC made a decision to repossess the vehicle. GMAC engaged defendant Prestige Recovery Service Ltd. (hereinafter Prestige), the firm that handled its Sullivan County repossessions, to perform the task. A representative of Prestige, defendant Robert J. McCrann, in turn hired defendant James H. Purdy, proprietor of defendant J & H Automotive Inc., to truck the vehicle from plaintiff's residence, where Tucker was staying at the time.

In the early morning of May 22, 1991, McCrann and Purdy traveled to plaintiff's home in Purdy's flat-bed truck. While the two were in the process of hoisting the vehicle onto the truck, plaintiff came out of the house and verbally confronted them. After Tucker's automobile was loaded on the truck, Purdy began to drive from the scene and, tragically, ran over plaintiff, causing the personal injuries giving rise to this negligence action. After trial, a jury apportioned liability in the following percentages: Purdy and J & H Automotive--1%, Prestige and McCrann--27%, GMAC--51% and plaintiff--21%; damages of $1.75 million were awarded. Defendants appeal from the judgment entered on the jury's verdict and the order denying their motions to set aside the verdict.

Turning first to the issue of liability, we agree with GMAC that Supreme Court should have directed a verdict dismissing the complaint against it at the close of the evidence (see, CPLR 4401). Even assuming, arguendo, that GMAC's negligence in ordering the repossession could be found to have proximately caused plaintiff's injuries, we conclude that there is no competent evidence to support a finding of any such negligence.

Initially, there being no question that Prestige was an independent contractor, GMAC could be found liable for Prestige's acts only upon competent evidence that it "engage[d] an unqualified or careless contractor or, when on notice of deficient performance, fail[ed] to prevent the continuance of such negligence" (Del Signore v. Pyramid Sec. Servs., 147 A.D.2d 759, 760, 537 N.Y.S.2d 640; see, Cichon v. Brista Estates Assocs., 193 A.D.2d 926, 597 N.Y.S.2d 819; Zelen v. City of Saratoga Springs, 187 A.D.2d 818, 589 N.Y.S.2d 709). Notably, plaintiff produced no evidence that GMAC had any knowledge of any previous acts of incompetence or inexperience on the part of Prestige (see, Hesch v. Seavey, 188 A.D.2d 808, 591 N.Y.S.2d 546; Annonio v. Balzano, 139 A.D.2d 943, 527 N.Y.S.2d 923, lv. denied 72 N.Y.2d 806, 532 N.Y.S.2d 847, 529 N.E.2d 177; La Manna v. Colucci, 138 A.D.2d 901, 526 N.Y.S.2d 643, affd 73 N.Y.2d 898, 539 N.Y.S.2d 291, 536 N.E.2d 620). To the contrary the evidence showed that the decision to hire Prestige was based upon GMAC's long-term relationship with its principal and that GMAC initially hired Prestige on a three-month trial basis and entered into a long-term relationship only after Prestige's satisfactory performance during that period. In fact, the evidence showed that Prestige had previously performed approximately 200 to 300 repossessions without incident. Under the circumstances, we conclude that plaintiff failed to meet his burden of proof on the issue of negligent hiring (see, La Manna v. Colucci, supra ).

Similarly, in the absence of evidence that GMAC affirmatively acted to direct or instruct Prestige or assumed control over its work, there is no basis for liability on the theory of negligent instruction and supervision (see, Broderick v. Cauldwell-Wingate Co., 301 N.Y. 182, 187, 93 N.E.2d 629; Thomassen v. J & K Diner, 152 A.D.2d 421, 424, 549 N.Y.S.2d 416, appeal dismissed 76 N.Y.2d 771, 559 N.Y.S.2d 979, 559 N.E.2d 673). We are not persuaded that GMAC's submission of its general policy guidelines competently supported a finding that such control existed (see, Broderick v. Cauldwell-Wingate Co., supra ).

Nor are we persuaded that the evidence supported a finding that GMAC was negligent in ordering the repossession. There is simply no probative evidence to support plaintiff's creative theories that GMAC's Orange County branch could not order a repossession without express direction from the North Carolina branch or that GMAC somehow breached a duty to plaintiff by failing to provide Prestige with a key to Tucker's vehicle. Further, we reject the contention that GMAC failed to supply Prestige with "proper credentials to evidence its authority to repossess the Tucker vehicle". The two-page document transmitted to Prestige (received in evidence as plaintiff's exhibit No. 1D) identified (1) Tucker by name, social security number, date of birth and place of employment, (2) the vehicle by year, make, model, vehicle identification number and color, and (3) GMAC as secured party, including an identification of its issuing and receiving branches, the precise status of Tucker's account, and a listing of the past-due...