BACKGROUND AND PROCEDURAL HISTORY Plaintiff commenced this action pursuant to a summons and endorsed complaint filed on October 16, 2018, seeking to recover damages to its insured’s vehicle, from a car accident which occurred in January 2018. Edelweiss of NYC, INC. d/b/a Vintage Valet (Defendant) appeared by counsel, and served an answer, dated December 14, 2018. The answer asserts a general denial and a cross claim against co-defendant George Mamaladze (GM). GM has never answered or appeared. On October 30, 2019, plaintiff moved for summary judgment as against defendant and a default judgment as against GM. On December 13, 2019, the court (Dominguez, J) issued an order denying the motion and finding that the issue of whether GM was an employee of Defendant, rather than an independent contractor was a question of fact requiring a trial. On January 13, 2020, plaintiff filed a notice of trial. On January 28, 2021, this court held a virtual trial. At the close of the trial the court reserved decision. EXHIBITS & WITNESSES The exhibits admitted at trial and testifying witnesses were: Plaintiff’s Exhibits Ex 1 Police Accident Report Ex 2 Estimate Ex 3 Rental Company Invoice No. 7680 Ex 4 Payment Ledger Plaintiff’s Witnesses Ahuva Ehrenfeld Bilal Talib Defendant’s Exhibits Ex A 1099 Miscellaneous Income Statements for 2018 Ex B 2018 W-2 Wage and Tax Statement Ex C 2018 Tax Returns Defendant’s Witnesses Revaz Lekishvili Peter Oudolsky FINDINGS OF FACT Ahuva Ehrenfeld (AE) was driving to school on the morning of January 18, 2018, AE was driving her parents’ car between 9 and 10 am in the morning. The car was a 2015 Honda Odyssey. AE was driving on the service lane by Ocean Parkway in Brooklyn. AE was driving at approximately 20 miles an hour, when she felt an impact on the right side of the vehicle. The impact came from a car that was parked on the right side. GM opened the door of the parked vehicle, hitting AE’s car as it passed by. GM was working as a valet that morning for an event at Temple Beth Torah. GM had been hired for that event by Defendant. The parties stipulated at trial that GM was an independent contractor of Defendant, rather than an employee. The Honda sustained damage to the front bumper headlights, windshield and passenger side of the vehicle. The estimate submitted in evidence details the work done to the vehicle which totaled $10,597.27. The estimated value of the car at the time was over $25,000.00. Plaintiff’s policy also provided for the insured to receive a rental vehicle for up to 30 days while the vehicle was being repaired. The insured rented a vehicle for 22 days, at a total cost of $660.00. Plaintiff issued a check to the insured and repair company on February 8, 2018, in the amount of $10,597.27, for the repairs done. Plaintiff issued a second check to Enterprise Holdings Inc. on March 12, 2018 for $660.00 for the cost of the repair. The court found both plaintiff’s witnesses to be credible. Peter Odoulosky (PO) testified for defendant. PO is the President of Defendant. PO testified that his company was hired by the caterer for the function at the temple to provide valet parking. PO testified that he was out of town at that time and that he called RL and told RL to find people to staff the event and that RL brought GM to work as a valet on that date. PO further testified there was no written contract between his company and the caterer for the provision of valet services, but that it was an oral agreement. PO testified that his company generally hired valets by placing newspaper ads, and that GM had worked for his company for approximately one month in 2018. The court found the testimony of Revaz Lekishvili (RL) lacked credibility. In particular the court found his testimony that AE was driving at 50 mph, rather than 20 mph to lack credibility, and to be refuted by other evidence in the case. To the extent that RL’s testimony differed from AE’s testimony, the court credits AE’s testimony over RL. CONCLUSIONS OF LAW The primary defense asserted by Defendant is that it bears no liability for the damage done to the Honda, because the valet who did the damage is an independent contractor.1 However, the court finds that Defendant is liable notwithstanding the stipulation that GM was an independent contractor. The Court of Appeals has held that a defendant who employs an independent contractor to perform services that the defendant has undertaken to perform, is liable for the negligence of the independent contractor (Miles v. R & M Appliance Sales, 26 NY2d 451). In so holding, the Court adopted the applicable rule from the Restatement of Torts, which provides: One who employs an independent contractor to perform services for another which are accepted in the reasonable belief that the services are being rendered by the employer or by his servants, is subject to liability for physical harm caused by the negligence of the contractor in supplying such services, to the same extent as though the employer were supplying them himself or by his servants (Restatement, 2d, Torts, s 429). In the case at bar, it is clear that Defendant is liable for the negligence of its parking attendant, notwithstanding the attendant’s status as independent contractor rather than employee. Furthermore, based on the credibility determinations of this court, the court does not find that AE was contributorily negligent in causing the accident. The court further finds that Plaintiff established the amount of damages by a preponderance of credible evidence that was not substantially challenged by Defendant. Based on the foregoing, the clerk is directed to enter a judgment in favor of plaintiff against Edelweiss of NYC d/b/a Vintage Valet in the amount of $11,257.20, plus costs and interest from October 16, 2018. As the notice of trial was not served on GM, the court declines to award a judgment as against GM at this time. This constitutes the decision and order of this court. Dated: January 28, 2021
