Hernandez v. Brayer

208 A.D.3d 642

174 N.Y.S.3d 77

Michael HERNANDEZ, appellant,

v.Yoel BRAYER, et al., respondents.

2019–11174

Index No. 509098/14

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

Argued—March 1, 2022

August 17, 2022

Paris & Chaikin, PLLC (The Altman Law Firm, PLLC, Woodmere, NY [Michael T. Altman ], of counsel), for appellant.

Jennifer S. Adams, Yonkers, NY (Richard C. Ertel of counsel), for respondent Yoel Brayer.

Smith Mazure, P.C., New York, NY (Louise M. Cherkis and Jacob Jay Young of counsel), for respondent Rafael Melendez.

Havkins Rosenfeld Ritzert, LLP, Mineola, N.Y. (Gail L. Ritzert of counsel), for respondents Andres Palm Hiroito II and Doe Fund, Inc.

MARK C. DILLON, J.P., COLLEEN D. DUFFY, LARA J. GENOVESI, WILLIAM G. FORD, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Loren Baily–Schiffman, J.), dated September 5, 2019. The order, insofar as appealed from, granted the separate motions of the defendant Yoel Brayer, the defendant Rafael Melendez, and the defendants Andres Palm Hiroito II and Doe Fund, Inc., for summary judgment dismissing the complaint insofar as asserted against each of them, and denied those branches of the plaintiff's motion which were for summary judgment on the issue of liability against the defendants Andres Palm Hiroito II and Doe Fund, Inc.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting the motion of the defendant Yoel Brayer for summary judgment dismissing the complaint insofar as asserted against him, and substituting therefore a provision denying the motion; as so modified, the order is affirmed insofar as appealed from, with one bill of costs to the plaintiff payable by the defendant Yoel Brayer, and one bill of costs to the defendant Rafael Melendez and the defendants Andres Palm Hiroito II and Doe Fund, Inc, appearing separately and filing separate briefs, payable by the plaintiff.

The plaintiff commenced this action to recover damages for personal injuries he allegedly sustained in a motor vehicle accident involving three vehicles. The plaintiff was a passenger in the rear-most vehicle, which was owned by his employer, the defendant Doe Fund, Inc. (hereinafter Doe), and operated by his co-employee, the defendant Andres Palm Hiroito II, when it struck a vehicle which was also owned by Doe, and which was operated by the plaintiff's co-employee, the defendant Rafael Melendez. There is conflicting evidence as to whether the vehicle operated by Melendez struck the lead vehicle, which was leased and operated by the defendant Yoel Brayer.

The Supreme Court erred in granting Brayer's motion for summary judgment dismissing the complaint insofar as asserted against him. Brayer, as the lessee and operator of the lead vehicle, demonstrated his prima facie entitlement to judgment as a matter of law by submitting his deposition testimony in which he testified that, as he was driving in...