Summary Judgment Denied to Plaintiffs Who Argued That Livery Company Employed Driver Who Flipped Over Van

Case: Jiang v. Liu

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

Date: July 18, 2012

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn and Queens; Queens injury attorney)

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Facts: This is a case of smart plaintiff's attorneys looking for additional pockets to recover from for their clients' personal injuries from a motor vehicle accident.

In 2006 the defendant-driver lost control, hit a guardrail and flipped over a packed van in Virginia, while driving to North Carolina from New York. Many were injured; one person died.

Painted onto the outside of the van were the words "Sky Express." The way to get more money or insurance money into the case would be to show that Sky Express was the driver's employer and/or leased the van for him.

Plaintiffs moved for summary judgment on the issue of whether Sky Express could be held into the lawsuit as the driver's employer and/or the lessee of the van.

To meet their initial burden, plaintiffs put in supporting photographs of the "Sky Express" writing on the van and documents from the North Carolina Department of Motor Vehicles showing that Sky Express leased the van.

Sky Express countered by showing that its lease ended before the accident and that it didn't own the van at the time.

Even though someone from Sky Express allegedly gave the driving assignment to the defendant-driver, Sky Express argued that it didn't employ the defendant-driver and that the Sky Express person was acting on his own.

The lower court ruled that Sky Express was the driver's employer and, also, leased the van, thus resolving this issue against Sky Express. Sky Express brought this appeal.

Held: While the lower court found that Sky Express' disclaimer that it did not hire the driver was not credible, questions of credibility are for a trial and summary judgment should have been denied. Thus, the question of whether Sky Express employed the defendant-driver is preserved for a jury.

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