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

Decided on July 22, 2026

2025-00510, (Index No. 720862/20)

Colleen D. Duffy, J.P.

Paul Wooten

Laurence L. Love

Phillip Hom, JJ.

[*1]

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Robert I. Caloras, J.), entered December 10, 2024. The order, insofar as appealed from, granted that branch of the motion of the defendants Rasier-NY, LLC, Uber USA, LLC, Uber Technologies, Inc., and Rasier-CA, LLC, which was for summary judgment dismissing the complaint insofar as asserted against them and denied that branch of the plaintiff's motion which was for summary judgment on the issue of liability against the defendants City Queens, Inc., City Livery Leasing Queens, Inc., and Wander Zapata.

ORDERED that the order is modified, on the law, (1) by deleting the provision thereof granting that branch of the motion of the defendants Rasier-NY, LLC, Uber USA, LLC, Uber Technologies, Inc., and Rasier-CA, LLC, which was for summary judgment dismissing so much of the complaint as sought to hold those defendants vicariously liable for the alleged negligence of the defendant Wander Zapata, and substituting therefor a provision denying that branch of the motion, and (2) by deleting the provision thereof denying that branch of the plaintiff's motion which was for summary judgment on the issue of liability against the defendants City Queens, Inc., City Livery Leasing Queens, Inc., and Wander Zapata, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, with one bill of costs to the plaintiff payable by the defendants Rasier-NY, LLC, Uber USA, LLC, Uber Technologies, Inc., and Rasier-CA, LLC, and the defendants City Queens, Inc., City Livery Leasing Queens, Inc., and Wander Zapata.

In November 2020, the plaintiff commenced this action to recover damages for personal injuries he allegedly sustained when a vehicle operated by the defendant Wander Zapata struck the rear of the plaintiff's vehicle while the plaintiff's vehicle was stopped at a red traffic signal. The plaintiff alleged that the vehicle operated by Zapata was owned by the defendants City Queens, Inc., and City Livery Leasing Queens, Inc. (hereinafter together the Taxi defendants), and that Zapata was an employee of the defendants Rasier-NY, LLC, Uber USA, LLC, Uber Technologies, Inc., and Rasier-CA, LLC (hereinafter collectively the Uber defendants). Following discovery, the Uber defendants moved, inter alia, for summary judgment dismissing the complaint [*2]insofar as asserted against them. The plaintiff moved, among other things, for summary judgment on the issue of liability against Zapata and the Taxi defendants. In an order entered December 10, 2024, the Supreme Court, inter alia, granted that branch of the Uber defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against them and denied that branch of the plaintiff's motion which was for summary judgment on the issue of liability against Zapata and the Taxi defendants. The plaintiff appeals.

"The doctrine of respondeat superior renders [an employer] vicariously liable for a tort committed by his or her [employee] within the scope of employment" (Gaudreau v Cucuzzo, 238 AD3d 998, 999 [internal quotation marks omitted]; see Perez v NES Med. Servs. of N.Y., P.C., 203 AD3d 1089, 1089-1090). "An action may be considered to be within the scope of employment, thus rendering an employer vicariously liable for the conduct, when 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" (Uy v Hussein, 186 AD3d 1567, 1570 [internal quotation marks omitted]; see Pinto v Tenenbaum, 105 AD3d 930, 931). "However, '[a]s a general rule, an employer who hires an independent contractor, as distinguished from an employee . . . , is not liable for the negligent acts of the independent contractor'" (Gaudreau v Cucuzzo, 238 AD3d at 999, quoting Nachman v Koureichi, 165 AD3d 818, 819). "Whether an actor is an independent contractor or an employee for the purposes of tort liability is usually a factual issue for the jury" (id. at 1000 [internal quotation marks omitted]; see Fiscina v Boro Rug & Carpet Warehouse Corp., 195 AD3d 998, 999).

Here, the Uber defendants failed to establish their prima facie entitlement to judgment as a matter of law, as they did not eliminate all triable issues of fact as to whether or not Zapata was an independent contractor (see Soares v Rahmatulloev, 234 AD3d 644, 645; Uy v Hussein, 186 AD3d at 1570). Accordingly, the Supreme Court should have denied that branch of the Uber defendants' motion which was for summary judgment dismissing so much of the complaint as sought to hold the Uber defendants vicariously liable for the alleged negligence of Zapata, without regard to the sufficiency of the plaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

"A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant's negligence was a proximate cause of the alleged injuries" (Tsyganash v Auto Mall Fleet Mgt., Inc., 163 AD3d 1033, 1033-1034; see Rodriguez v City of New York, 31 NY3d 312, 317). "A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, requiring that operator to come forward with evidence of a nonnegligent explanation for the collision in order to rebut the inference of negligence" (Sherman v Edwards, 242 AD3d 1034, 1035 [internal quotation marks omitted]; see Sougstad v Capuano, 215 AD3d 776, 777). "'A nonnegligent explanation may include a mechanical failure, a sudden, unexplained stop of the vehicle ahead, an unavoidable skidding on wet pavement, or any other reasonable cause'" (Madrigal v Paragon Motors of Woodside, Inc., 236 AD3d 885, 887, quoting Donnellan v LaMarche, 221 AD3d 783, 784). "[W]here the operator of the moving vehicle alleges that the accident was the result of brake failure and presents evidence that the brake problem was unanticipated, and that reasonable care had been exercised to keep the brakes in good working order, he or she has demonstrated a nonnegligent explanation for the happening of the accident" (Schuster v Amboy Bus Co., 267 AD2d 448, 448-449; see Ballatore v HUB Truck Rental Corp., 83 AD3d 978, 980).

Here, the plaintiff demonstrated his prima facie entitlement to judgment as a matter of law on the issue of liability against Zapata and the Taxi defendants by demonstrating that the plaintiff's vehicle was stopped at a red traffic signal when it was struck in the rear by the vehicle operated by Zapata (see McRae v City of New York, 208 AD3d 775; Ordonez v ADM Agravit, Inc., 205 AD3d 1042, 1043). In opposition, Zapata and the Taxi defendants failed to raise a triable issue of fact as to the existence of a nonnegligent explanation based on Zapata's vague and conclusory assertion of brake failure (see Madrigal v Paragon Motors of Woodside, Inc., 236 AD3d at 888; Vidal v Tsitsiashvili, 297 AD2d 638). Moreover, Zapata and the Taxi defendants failed to submit evidence showing that reasonable care had been exercised to keep the brakes in good working order [*3]prior to the accident (see Reid v Rayamajhi, 17 AD3d 557). Accordingly, the Supreme Court should have granted that branch of the plaintiff's motion which was for summary judgment on the issue of liability against Zapata and the Taxi defendants.

The plaintiff's remaining contentions are without merit.

DUFFY, J.P., WOOTEN, LOVE and HOM, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court