Hormigas v. Village East Towers, Inc.

137 A.D.3d 406, 26 N.Y.S.3d 62

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 1, 2016
• Docket: 16033 101408/11
• Status: Published

Opinions

Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered September 26, 2014, which denied defendants Village East Towers, Inc.’s (Village East) and Command Security Corporation’s (Command Security) respective motions for summary judgment dismissing the complaint and cross claims as against them, modified, on the law, to grant the motion as to defendant Village East, and otherwise affirmed, without costs. The Clerk is directed to enter judgment in favor of defendant Village East Towers, Inc. dismissing the amended complaint and all cross claims against it.

Plaintiff alleges that, while crossing a street in Queens County, he sustained personal injuries when he was struck by a vehicle owned by defendant Nicomedes Sanchez and operated by defendant Robert Hernandez. It is undisputed that Hernandez was stopped at a traffic light that was at the intersection, and that the accident happened after he placed the vehicle into reverse. It is also undisputed that on the day of the accident Hernandez was employed as a security guard by defendant Command Security, which was contracted to provide security for defendant Village East’s property, including the parking garage where Sanchez kept his vehicle.

Although Sanchez denied giving Hernandez permission to take the vehicle outside of the garage, he testified that Hernandez regularly delivered messages from building management to his apartment, and that he gave his car keys directly to Hernandez so that the car could be moved within the garage while the facility was being repaired. Hernandez testified that Sanchez asked him to “look after” the vehicle and that he believed he had Sanchez’s permission to operate it on the day of the accident. An incident report completed by Hernandez after the accident also states that Sanchez gave the keys to him directly and asked him to “take care of” the vehicle. In addition, Command Security’s account manager testified that Hernandez told him a few weeks after the accident that he had Sanchez’s permission to use the vehicle.

* Hernandez also testified that on the day of the accident, he took Sanchez’s vehicle for an oil change, charged the battery, and had the vehicle washed.

Drawing inferences in plaintiff’s favor as we must on this motion for summary judgment, the record demonstrates that there is a triable issue of fact as to whether Hernandez was acting within the scope of his employment when the accident occurred (see Riviello v Waldron, 47 NY2d 297 [1979]; Schilt v New York City Tr. Auth., 304 AD2d 189 [1st Dept 2003]; Baguma v Walker, 195 AD2d 263 [1st Dept 1993]). There are unresolved questions as to the nature of the relationship between Sanchez and Hernandez, and whether Sanchez gave Hernandez permission to operate his car outside of the garage on the day of the accident. There is also an issue of fact as to whether Command Security could have reasonably anticipated that its security guards, who had access to tenants’ keys and vehicles, might operate the vehicles outside of the garage and cause injury to third parties (see Riviello, 47 NY2d at 303). Moreover, despite Command Security’s policy that guards were to remain at the security post, the company kept a document entitled “Post Instructions” that instructed the guards to perform reasonable special requests by clients, using, as an example, leaving the security post to take a package to the post office. Although Hernandez testified that Sanchez did not ask him to perform the specific tasks of washing the vehicle, charging the battery, and changing the oil, whether Hernandez reasonably interpreted Sanchez’s request to “look after” or “take care of” the car as inclusive of such tasks is a question for a jury.

In view of the disputed factual issues discussed above, the motion court erred in finding that Hernandez “basically [ ] st[ole] the car” and that he operated the vehicle without Sanchez’s permission on the day of the accident. Therefore, although Command Security is not entitled to summary judgment, the basis for denying its motion and the issues at trial should not be limited as the concurrence suggests.

However, we find that Village East is entitled to summary judgment, because it is undisputed that it did not employ Hernandez and was neither the owner of the vehicle involved in the collision nor the accident location (see Morales v Living Space Design, 278 AD2d 48, 49 [1st Dept 2000]). The record shows that Village East discharged its common-law duty to take minimal security precautions to secure the premises, including vehicles parked in its garage, against reasonably foreseeable criminal acts by third parties by hiring Command Security to secure the area 24 hours a day, seven days a week (see James v Jamie Towers Hous. Co., 99 NY2d 639, 641 [2003]). Even if Village East had not hired Command Security to secure the premises, Village East would not be liable for plaintiffs injuries, because there is no evidence it had control over Hernandez or that it could have prevented Hernandez’s alleged misconduct (see Martino v Stolzman, 18 NY3d 905, 908 [2012]; Pulka v Edelman, 40 NY2d 781, 785-786 [1976]).

Concur—Acosta, Saxe and Manzanet-Daniels, JJ.

This hearsay evidence may be used to oppose summary judgment, since it is not the only evidence submitted for that purpose (see Briggs v 2244 Morris L.P., 30 AD3d 216 [1st Dept 2006]).