Judy Yuh-Neu Chou v. A to Z Vending Service Corp.

Jan 23, 2007
Versions:36 A.D.3d 745
830 N.Y.S.2d 204

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Agate, J.), dated July 7, 2005, which granted the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The defendant demonstrated a good cause for its delay in making a motion for summary judgment, and the motion court providently exercised its discretion in entertaining the late motion (see CPLR 3212 [a]; Brill v City of New York, 2 NY3d 648, 652 [2004]; Olivier v Rodney, 27 AD3d 631 [2006]; Certified Elec. Contr. Corp. v City of New York [Dept. of Transp.], 23 AD3d 596 [2005]; Herrera v Felice Realty Corp., 22 AD3d 723 [2005]). On the merits, the defendant submitted evidence sufficient to establish its entitlement to judgment as a matter of law by demonstrating that the allegedly negligent third-party defendant was an independent contractor, over whom it exercised no control, and not one of its employees (see Kleeman v Rheingold, 81 NY2d 270, 273 [1993]; Rosenberg v Equitable Life Assur. Socy. of U.S., 79 NY2d 663, 668 [1992]; Abreu v Schneilwert, 303 AD2d 527 [2003]; Metling v Punia & Marx, 303 AD2d 386 [2003]; Mercado v Slope Assoc., 246 AD2d 581 [1998]). In opposition, the plaintiff failed to submit evidence sufficient to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Krausman, J.P., Florio, Lunn and Covello, JJ., concur.