Cook v. Supreme Systems, Inc.

Appellate Division of the Supreme Court of New York

Cook v. Supreme Systems, Inc.

2017 NY Slip Op 395, 146 A.D.3d 602, 44 N.Y.S.3d 746

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 19, 2017

Docket2789 101907/10 156885/12

StatusPublished

Cited by5 cases

This text of 2017 NY Slip Op 395 (Cook v. Supreme Systems, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cook v. Supreme Systems, Inc., 2017 NY Slip Op 395, 146 A.D.3d 602, 44 N.Y.S.3d 746 (N.Y. Ct. App. 2017).

Pincite

Opinion

Order, Supreme Court, New York County (Carol R. Edmead, J.), entered January 8, 2016, which, to the extent appealed from, denied the motion of defendants Supreme Systems, Inc. (Supreme) and Supreme Building Messengers, Inc., for summary judgment dismissing the complaint as against Supreme, unanimously affirmed, without costs.

Plaintiff testified at his deposition that he was injured when he was struck by a bicyclist carrying a messenger bag with the word “Supreme” on it, and who told plaintiff that he worked “there,” while pointing toward the building where Supreme has its offices. In support of the motion for summary judgment, defendants submitted the testimony of Supreme’s employee and of plaintiff. While Supreme’s employee testified that his investigation determined that none of Supreme’s employees could have been the bicyclist involved in the accident based on their physical appearances and whereabouts at the time of the accident, his testimony did not foreclose the possibility that one of the messengers was the one described by plaintiff and *603 had returned to the office during the day between deliveries. Furthermore, plaintiffs testimony provides sufficient circumstantial evidence to permit a jury to rationally infer that the unidentified bicyclist was an employee of Supreme and acting within the scope of his employment at the time of the accident (see Jones v Hiro Cocktail Lounge, 139 AD3d 608 [1st Dept 2016]; Uttaro v Staten Is. Univ. Hosp., 77 AD3d 916 [2d Dept 2010]).

Defendants waived any hearsay objection to plaintiff’s testimony when they submitted it in support of their motion without limitation (see Shinn v Catanzaro, 1 AD3d 195, 198 [1st Dept 2003]). Any inconsistencies in plaintiff’s description of the messenger bag go to his credibility, which is an issue for the jury to resolve (see generally Pena v Penny Lane Realty Inc., 129 AD3d 441, 442 [1st Dept 2015]).

We have considered defendants’ remaining arguments and find them unavailing.

Concur — Andrias, J.P., Saxe, Feinman, Gische and Kahn, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

Order, Supreme Court, New York County (Carol R. Edmead, J.), entered January 8, 2016, which, to the extent appealed from, denied the motion of defendants Supreme Systems, Inc. (Supreme) and Supreme Building Messengers, Inc., for summary judgment dismissing the complaint as against Supreme, unanimously affirmed, without costs.

Plaintiff testified at his deposition that he was injured when he was struck by a bicyclist carrying a messenger bag with the word “Supreme” on it, and who told plaintiff that he worked “there,” while pointing toward the building where Supreme has its offices. In support of the motion for summary judgment, defendants submitted the testimony of Supreme’s employee and of plaintiff. While Supreme’s employee testified that his investigation determined that none of Supreme’s employees could have been the bicyclist involved in the accident based on their physical appearances and whereabouts at the time of the accident, his testimony did not foreclose the possibility that one of the messengers was the one described by plaintiff and *603 had returned to the office during the day between deliveries. Furthermore, plaintiffs testimony provides sufficient circumstantial evidence to permit a jury to rationally infer that the unidentified bicyclist was an employee of Supreme and acting within the scope of his employment at the time of the accident (see Jones v Hiro Cocktail Lounge, 139 AD3d 608 [1st Dept 2016]; Uttaro v Staten Is. Univ. Hosp., 77 AD3d 916 [2d Dept 2010]).

Defendants waived any hearsay objection to plaintiff’s testimony when they submitted it in support of their motion without limitation (see Shinn v Catanzaro, 1 AD3d 195, 198 [1st Dept 2003]). Any inconsistencies in plaintiff’s description of the messenger bag go to his credibility, which is an issue for the jury to resolve (see generally Pena v Penny Lane Realty Inc., 129 AD3d 441, 442 [1st Dept 2015]).

We have considered defendants’ remaining arguments and find them unavailing.

Concur — Andrias, J.P., Saxe, Feinman, Gische and Kahn, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

2017 NY Slip Op 395, 146 A.D.3d 602, 44 N.Y.S.3d 746, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cook-v-supreme-systems-inc-nyappdiv-2017.

Opinion

Related

Cite This Page — Counsel Stack