Williams v. Perez-Gutierrez

Opinion

Williams v Perez-Gutierrez

2026 NY Slip Op 04981

August 12, 2026

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

Barry Williams, appellant,

v

Hugo Perez-Gutierrez, et al., defendants, Barth-Gross Electric Co., Inc., et al., respondents.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on August 12, 2026

2024-10880, (Index No. 708121/21)

Valerie Brathwaite Nelson, J.P.

Lillian Wan

Laurence L. Love

Elena Goldberg Velazquez, JJ.

William Pager, Brooklyn, NY, for appellant.

Barbiero Bisch O'Connor & Commander, LLP, Melville, NY (Nicole D. Fogarty of counsel), for respondent Barth-Gross Electric Co., Inc.

Silverson, Pareres & Lombardi, LLP, White Plains, NY (Stephen M. Marcellino of counsel), for respondent Skyforce Group, LLC.

[*1]

DECISION & ORDER

In a consolidated action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Joseph J. Esposito, J.), dated August 26, 2024. The order granted the separate motions of the defendant Barth-Gross Electric Co., Inc., and the defendant Skyforce Group, LLC, for summary judgment dismissing the complaint insofar as asserted against each of them.

ORDERED that the order is affirmed, with one bill of costs.

The plaintiff commenced two separate actions, which were subsequently consolidated, to recover damages for personal injuries he alleged he sustained in February 2021 when the plaintiff's vehicle was struck by a vehicle operated by the defendant Jose Luis Romero Herrera and owned by the defendant Hugo Perez-Gutierrez, as it exited a driveway associated with premises operated by the defendant Barth-Gross Electric Co., Inc. (hereinafter BGE), and owned by the defendant Skyforce Group, LLC (hereinafter Skyforce), onto the street. Following joinder of issue, BGE and Skyforce separately moved for summary judgment dismissing the complaint insofar as asserted against each of them. In an order dated August 26, 2024, the Supreme Court granted the motions. The plaintiff appeals.

"Before a defendant may be held liable for negligence, it must be shown that the defendant owes a duty to the plaintiff" (Kallem v Mandracchia, 111 AD3d 893, 894; see Escobar v Segunda Iglesia Pentecostal Juan 3:16 Asamblea de Dios, 232 AD3d 719, 720). "In general, an entity has no duty to control a third party's conduct so as to prevent injury to another unless special circumstances exist in which the entity has sufficient authority and control over the conduct of that third party" (Toltchelnikova v Community Recycling, LLC, 197 AD3d 677, 678; see Melio v John T. Mather Mem. Hosp., 239 AD3d 725, 726; McKiernan v Vaccaro, 168 AD3d 827, 830). "In the absence of duty, there is no breach and without a breach there is no liability" (Pulka v Edelman, 40 NY2d 781, 782; see Santoro v Poughkeepsie Crossings, LLC, 180 AD3d 12, 18).

Here, BGE and Skyforce each established their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against each of them by demonstrating that they did not control, direct, or supervise Herrera, the operator of the vehicle, and, thus, did not owe a duty of care to the plaintiff (see Toltchelnikova v Community Recycling, LLC, 197 AD3d at 678; Wang v Barr & Barr, Inc., 127 AD3d 964, 965). In opposition, the plaintiff failed to raise a triable issue of fact (see Melio v John T. Mather Mem. Hosp., 239 AD3d at 727; Kallem v Mandracchia, 111 AD3d at 894; Safa v Bay Ridge Auto, 84 AD3d 1344, 1346).

Accordingly, the Supreme Court properly granted the separate motions of BGE and Skyforce for summary judgment dismissing the complaint insofar as asserted against each of them.

The plaintiff's remaining contentions are without merit.

BRATHWAITE NELSON, J.P., WAN, LOVE and GOLDBERG VELAZQUEZ, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court