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

Saul ROTH, Respondent, v. Adam E. BARRETO, et al., Defendants,

Vincenzo's of North Merrick Ltd., Appellant.  (Action No. 1). Lenny Roth, etc., et al., Respondents, v. Adam E. Barreto, et al., Defendants, Vincenzo's of North Merrick Ltd., Appellant.  (Action No. 2).

Decided: December 31, 2001

FRED T. SANTUCCI, J.P., MYRIAM J. ALTMAN, ANITA R. FLORIO, HOWARD MILLER and BARRY A. COZIER, JJ. Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Garden City, N.Y. (Kathleen D. Foley of counsel), for appellant. Weisfuse & Weisfuse, LLP, New York, N.Y. (Maureen A. Sockett of counsel), for respondent in Action No. 1, and Feldman, Kramer & Monaco, P.C., Hauppauge, N.Y. (Jason F. Zimmerman of counsel), for respondents in Action No. 2 (one brief filed).

In two related actions to recover damages for personal injuries, etc., Vincenzo's of North Merrick Ltd., a defendant in both actions, appeals from an order of the Supreme Court, Nassau County (Palmieri, J.), entered March 15, 2001, which denied its motion for summary judgment dismissing the complaints in both actions insofar as asserted against it.

ORDERED that the order is affirmed, with costs.

On February 18, 1999, at about 6:55 P.M., a vehicle operated by Adam E. Barreto, a defendant in both actions, collided with a vehicle operated by the plaintiff in Action No. 1, Saul Roth, in front of the appellant's pizza store.   The plaintiffs allege that Barreto was delivering pizza pies for the appellant at the time of the accident.   The appellant moved for summary judgment in both actions, alleging that Barreto was not its employee on the date of the accident or at any other time.   In support of its motion, the appellant offered the deposition testimonies of Barreto, his mother, and the appellant's owner, stating that Barreto was not an employee of the appellant.   Barreto testified that he had bought two pizza pies that night from the appellant for his own consumption.

In opposition to the motion for summary judgment, the plaintiffs offered the deposition testimony of Saul Roth and the sworn affidavit of an off-duty police officer.   Saul Roth testified that, upon confronting Barreto immediately after the accident, Barreto stated “I'm sorry.   I'm in a hurry.   I'm making deliveries”.   Furthermore, both Saul Roth and the off-duty police officer observed the appellant's owner or manager and another employee remove 8 to 10 pizza-pie boxes from the rear seat of Barreto's vehicle and carry them into the pizza store.

The court's function on a motion for summary judgment is not to resolve issues of fact or to determine matters of credibility but merely to determine whether such issues exist (see, Barr v. County of Albany, 50 N.Y.2d 247, 428 N.Y.S.2d 665, 406 N.E.2d 481;  Rebecchi v. Whitmore, 172 A.D.2d 600, 601, 568 N.Y.S.2d 423;  Daliendo v. Johnson, 147 A.D.2d 312, 317, 543 N.Y.S.2d 987).   There exist triable issues of fact as to whether Barreto was employed by the appellant and acting within the scope of his employment at the time of the accident (see, Carrion v. Orbit Messenger, 82 N.Y.2d 742, 602 N.Y.S.2d 325, 621 N.E.2d 692;  Matter of Rivera, 69 N.Y.2d 679, 512 N.Y.S.2d 14, 504 N.E.2d 381, cert. denied sub nom. State Line Delivery Service, Inc. v. Rivera, 481 U.S. 1049, 107 S.Ct. 2181, 95 L.Ed.2d 837;  Matter of 12 Cornelia St., Inc., 56 N.Y.2d 895, 897, 453 N.Y.S.2d 402, 438 N.E.2d 1117).   Thus, the Supreme Court properly denied the appellant's motion for summary judgment dismissing the complaints in both actions insofar as asserted against it.

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