The following papers numbered EF 76-104 read on this motion by defendants Adria Infrastructure, LLC, Adria Industrial Piping, Ltd. and Adria Tenant Fit Out LLC for summary judgment dismissing the complaint and all cross claims insofar as asserted against them; and cross motion by the plaintiff for partial summary judgment against defendants Adria Infrastructure, LLC, Adria Industrial Piping, Ltd. and Adria Tenant Fit Out LLC on the issue of permissive use under Vehicle and Traffic Law § 388, or in the alternative, for an order dismissing the affirmative defense regarding lack of consent asserted in the defendants' Answer.

Papers Numbered

Notice of Motion - Affidavits - Exhibits EF 76-94

Notice of Cross Motion - Affidavits - Exhibits... EF 95-100

Affirmation in Opposition EF 102

Replying Affirmations EF 103-104

Upon the foregoing papers it is ordered that this motion by defendants Adria Infrastructure, LLC ("AIF"), Adria Industrial Piping, Ltd. ("AIP") and Adria Tenant Fit Out LLC ("ATFO") for summary judgment dismissing the complaint and all cross claims insofar as asserted against them; and cross motion by the plaintiff for partial summary judgment against the defendants AIF, AIP and ATFO on the issue of permissive use under Vehicle and Traffic Law § 388, or in the alternative, for an order dismissing affirmative defense regarding lack of consent [*2]asserted in the defendants' Answer are decided as follows:

Plaintiff allegedly sustained serious injuries when she was struck by a van on October 10, 2019 in front of 28-57 Steinway Street in Queens County at approximately 10:50 P.M. Defendant AIF was the owner of the van, and defendant ATFO was the employer of co-defendant Erick Sanchez, who was operating the van. Sanchez was employed as a driver and shop hand for defendant ATFO. He was hired on the recommendation of his uncle, Johnny Navarrete, who worked at ATFO as the shop manager. On the day of the incident, Sanchez was picking up some materials for work, and Mr. Navarrete gave him permission to take the van home since it was late in the day and instructed to bring it back the next morning.

The incident allegedly occurred when plaintiff was run over by the van while it was being operated by defendant Sanchez, her ex-boyfriend. At the time of the incident, plaintiff had an Order of Protection in place against Sanchez. The two were arguing near a bus stop, and defendant Sanchez allegedly accelerated the vehicle while plaintiff was leaning on the passenger side window, and the vehicle's tires ran over the lower back half of plaintiff's body. Sanchez maintains that he did not intentionally hit the plaintiff with the van. Sanchez was arrested and subsequently pled guilty to assault in the first degree for causing serious injury to the plaintiff while in furtherance of the commission or attempted commission of a felony (criminal contempt for violating Orders of Protection).

Defendants AIF, AIP and ATFO now move for summary judgment dismissing the complaint and all cross claims as against them. Plaintiff cross moves for summary judgment on the issue of permissive use of the van, or in the alternative, dismissing the affirmative defense alleging that defendants did not consent to the use of the van by Sanchez.

At the outset, the court will first consider the timeliness of the plaintiff's cross motion for summary judgment.

It is well settled that a motion or cross motion for summary judgment must be made within 120 Days after the filing of the note of issue, except with leave of court on good cause shown. (CPLR 3212[a]; Miceli v State Farm Mut. Auto Ins. Co., 3 NY3d 725, 726-727 [2004]; Brill v City of New York, 2 NY3d 648, 652 [2004].) The note of issue herein was filed on January 5, 2024, and the cross motion for summary judgment was made on May 9, 2024, more than 120 days after the filing of the note of issue. A cross motion for summary judgment made more than 120 days after the filing of a note of issue, however, may be considered on its merits if there is a timely pending motion for summary judgment made by another party on nearly identical grounds. (Munoz v Salcedo, 170 AD3d 735, 736 [2d Dept 2019]; Bicounty Brokerage Corp. v Burlington Ins. Co., 101 AD3d 778, 780 [2d Dept 2012]; Teitelbaum v Crown Heights Assn. for Betterment, 84 AD3d 935, 937 [2d Dept 2011].)

In the case at bar, the issues presented in the motion by defendants require the court to address whether defendant Sanchez was driving the van with permissive use pursuant to Vehicle and Traffic Law § 388. Plaintiff's cross motion seeks summary judgment specifically on the issue of permissive use. Thus, the issue of permissive use has already been placed properly before the court by the main motion, and therefore, the court will entertain the cross motion for summary judgment.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the [*3]absence of any material issues of fact. (Ayotte v Gervasio, 81 NY2d 1062, 1063 [1993].) Once a prima facie showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish material issues of fact which require a trial of the action. (Zuckerman v City of New York, 49 NY2d 557, 562 [1980].) Summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue. (Peerless Ins. Co. v Allied Bldg. Prods. Corp., 15 AD3d 373, 374 [2d Dept 2005].)

Pursuant to Vehicle and Traffic Law § 388, the owner of a motor vehicle shall be liable for the negligence of one who operates the vehicle with the owner's express or implied consent. (Dombalic v Cornelius, 232 AD3d 583, 584 [2d Dept 2024]; Rodriguez v Morales, 217 AD3d 695, 696 [2d Dept 2023]; Vyrtle Trucking Corp. v Browne, 93 AD3d 716, 717 [2d Dept 2012]; Panteleon v Amaya, 85 AD3d 993, 994 [2d Dept 2011].) The statute creates a presumption that the driver was operating the vehicle with the owner's express or implied permission, which may only be rebutted by substantial evidence sufficient to show that the vehicle was not operated with the owner's consent. (Murdza v Zimmerman, 99 NY2d 375, 380 [2003]; Matter of Allstate Ins. Co. v Jae Kan Shim, 185 AD3d 919, 920 [2d Dept 2020]; Tsadok v Veneziano, 65 AD3d 1130, 1132 [2d Dept 2009]; Forte v New York City Tr. Auth., 2 AD3d 489, 490 [2d Dept 2003].)

In the matter at hand, the deposition testimony raises triable issues of fact as to whether defendant Sanchez was operating the van with permissive use at the time of the accident. Mr. Navarrete testified at his deposition that he gave defendant Sanchez permission to take the van home on the night of the accident since he was working late and told him to bring it back the next morning. He testified that he never told Sanchez that he could not use the van for a particular purpose. He testified that Sanchez was not restricted in using the van as he wanted to use it when he allowed him to take it home and never placed any restrictions on where he could go with the van. The only restriction Navarrete testified to was that no one else was allowed to be in the van. However, he also stated that it was his understanding that Sanchez would park the van at home and bring it back to work the next day. He further stated that he never gave him explicit permission to take the van back out after he parked it at home. Although Mr. Navarrete testified that the van was not allowed to be used for personal purposes, there was no testimony that this was ever communicated to Sanchez. He testified that he did not tell him that he could not use the van to do certain things, but he stated that he told him he can take the van home "and that's it."

In addition, Damjan Stanivukovic, a member of AIF, testified at his deposition that the company's vans were supposed to be returned every night. However, he also testified that there were no written policies in place regarding use of the vans. He testified that it was Mr. Navarette's exclusive responsibility to monitor the use of the vans. He stated that he never placed restrictions on the use of the vans as that was Mr. Navarette's role. Moreover, defendant Sanchez testified at his deposition that when he was given permission to take the van home, Mr. Navarette never placed any restrictions on where Sanchez could drive the van that evening.

Furthermore, the fact that defendant pled guilty to assault in the first degree for causing serious injury to the plaintiff while in furtherance of the commission or attempted commission of a felony does not automatically preclude a finding of permissive use. A vehicle owner cannot be held vicariously liable for injuries caused by a permissive user's intentional acts. (White v [*4]Mayfield, 161 AD3d 1552, 1554 [4th Dept 2018]; Gomez v Singh, 309 AD2d 620, 621 [1st Dept 2003].)

The felony herein was criminal contempt as a result of Sanchez's violation of the Order of Protection that was in place against him. However, defendant Sanchez testified that he never intended to strike or injure the plaintiff that evening even though he was in violation of the Order of Protection. He testified that he did not know that plaintiff's hands were on the passenger side window when he drove away as his attention was focused on the left. The plea allocution of defendant Sanchez on June 13, 2022 does not establish that Sanchez engaged in any intentional misconduct in causing this incident. At the allocution, the Honorable Stephanie Zaro noted that "I do not believe there was intent on his part to cause the injuries. He's not charged with that."

Thus, neither plaintiff or defendants are entitled to summary judgment on the issue of whether Sanchez was operating the van with permissive use.

The doctrine of respondeat superior renders an employer vicariously liable for torts committed by an employee acting within the scope of the employment. (Brown v Lyft, Inc., 219 AD3d 445, 446 [2d Dept 2023].) Pursuant to this doctrine, the employer may be liable when the employee acts negligently or intentionally, so long as the tortious conduct is generally foreseeable and a natural incident of the employment. (Judith M. v Sisters of Charity Hosp., 93 NY2d 932, 933 [1999]; Camisa v Rosen, 150 AD3d 809, 810 [2d Dept 2017].) "An employee's actions fall within the scope of employment where the purpose in performing such actions is to further the employer's interest, or to carry out duties incumbent upon the employee in furthering the employer's business." (Beauchamp v City of New York, 3 AD3d 465, 466 [2004].) An act is considered to be within the scope of employment if it is performed while the employee is engaged generally in the business of the employer, or if the act may be reasonably said to be necessary or incidental to such employment. (Pinto v Tenenbaum, 105 AD3d 930, 931. [2d Dept 2013].) Where, however, an employee's actions are taken for wholly personal reasons, which are not job related, the actions cannot be said to fall within the scope of employment. (Selmani v City of New York, 116 AD3d 943, 944 [2d Dept 2014]; Brown v Lyft, Inc., 219 AD3d at 446-447; Montalvo v Episcopal Health Servs., Inc., 172 AD3d 1357, 1360 [2d Dept 2019].)

At bar, the moving defendants made a prima facie showing that Sanchez was not acting within the scope of his employment at the time of the accident. The accident occurred at almost 11:00 P.M. Defendant Sanchez had already returned home with the vehicle and parked it on the street near his home between 8:00 P.M. and 9:00 P.M. He then went out with the plaintiff and her sister for dinner nearby but returned to get the van after dinner to drive them home. While Sanchez went to get the van, plaintiff was waiting for him at a bus stop near the restaurant. Sanchez's employment did not create the necessity for travel at the time he went back to pick up the van after it was parked. (see Kelly v Starr, 181 ad3d 799, 801 [2d Dept 2020].) There was no employment related reason for the van to be used at that time. Rather, at that point, the van was being used for solely personal reasons. In opposition, plaintiff fails to raise a triable issue of fact as to whether the van was being used to further Sanchez's employment.

Although defendants also sought summary judgment dismissing causes of action for negligent hiring, negligent supervision and negligent entrustment, the complaint does not allege these causes of action.

Accordingly, the branch of the motion by defendants for summary judgment is granted [*5]solely to the extent that the claims in the complaint based upon the theory of respondeat superior are dismissed.

The branch of the motion by defendants for summary judgment dismissing the claims in the complaint based upon the doctrine of permissive use under Vehicle and Traffic Law § 388 is denied.

The cross motion by plaintiff is denied in its entirety.