Andreula v. Steinway Baraqafood Corp.

243 A.D.2d 596, 668 N.Y.S.2d 891, 1997 N.Y. App. Div. LEXIS 10284

Opinion

In an action to recover damages for personal injuries, etc., the defendant Dunkin Donuts of New York, Inc., appeals from an order of the Supreme Court, Queens County (Lane, J.), dated November 19, 1996, which denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.

Ordered that the order is reversed, on the law, with costs, the motion is granted, the complaint and all cross claims are dismissed insofar as asserted against the defendant Dunkin Donuts of New York, Inc., and the action against the remaining defendants is severed.

This action arises out of a motor vehicle accident in which an employee of a franchisee of the defendant Dunkin Donuts of New York, Inc., lost control of his delivery vehicle and struck a pedestrian. The evidence submitted in support of and in opposition to the appellant’s motion for summary judgment established that it did not hire the driver, maintain control over its franchisee’s hiring practices, or maintain the right to direct and control the manner of performing the very work in the course of which the accident occurred. Accordingly, the ap pellant’s motion for summary judgment should have been granted (see, Abreu v Getty Ref. & Mktg. Co., 121 AD2d 419). Rosenblatt, J. P., O’Brien, Thompson, Friedmann and Gold-stein, JJ., concur.