BUSHEY v. Phoenix Beverages, Inc., Defendant-Respondent. (1999)

Supreme Court, Appellate Division, First Department, New York.

Candice BUSHEY, Plaintiff-Respondent, v. RESTAURANT ASSOCIATES, INC., Defendant-Appellant, Phoenix Beverages, Inc., Defendant-Respondent.

Decided: April 29, 1999

ROSENBERGER, J.P., WILLIAMS, ANDRIAS, SAXE and BUCKLEY JJ.

Melvyn S. Jacknowitz, for Plaintiff-Respondent. Robert G. Macchia, for Defendant-Appellant. Gregory O. Koerner, for Defendant-Respondent.

Order, Supreme Court, New York County (Elliott Wilk, J.), entered on or about June 2, 1998, which denied defendant-appellant's motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

Triable issues of fact exist, including whether the driver of the cart that struck plaintiff was appellant's employee, and, if that is not the case, whether appellant exercised sufficient control over the cart to warrant the imposition of liability (see, Ahmad v. Ennab, 158 A.D.2d 637, 552 N.Y.S.2d 33). This latter issue is raised by the testimony that carts like the one in question were freely given out by appellant to its subcontractors based on availability.

MEMORANDUM DECISION.

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