Dodaj v. Total Concrete Flatwork, LLC
Docket Index No. 803790/24|Appeal No. 6521|Case No. 2025-02986|
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- Filed
- Jurisdiction
- New York
- Court
- Appellate Division of the Supreme Court of the State of New York
- Type
- Opinion
- Case type
- Civil
- Disposition
- Granted
- Citation
- 2026 NY Slip Op 02776
- Docket numbers
- Index No803790/24Appeal No6521Case No2025-02986
Appeal from denial of defendant's CPLR 3211 and summary judgment motion in a motor-vehicle negligence action
Summary
The Appellate Division, First Department reversed part of Supreme Court Bronx County's order and granted summary judgment to defendant Total Concrete Flatwork, LLC (TCF), dismissing the complaint and cross-claims against it in a motor-vehicle accident case. The court held that TCF established it did not own, operate, control the vehicle at issue and had no employment relationship with the driver. Plaintiffs and codefendants failed to raise a triable issue because ownership and permissive use were admitted by codefendant Total Property Care, leaving TCF unconnected to the vehicle or driver.
Issues Decided
- Whether defendant Total Concrete Flatwork, LLC owned, operated, or controlled the vehicle involved in the accident
- Whether Total Concrete Flatwork, LLC had an employment relationship with the driver such that it could be held vicariously liable
- Whether plaintiffs and codefendants raised a triable issue of fact to defeat summary judgment for TCF
Court's Reasoning
The court found that TCF presented evidence showing it neither owned nor controlled the subject vehicle and had no employment relationship with the driver, which is sufficient to shift the burden at summary judgment. The separate corporate identity of TCF from codefendant Total Property Care supported that lack of connection. Because Total Property Care admitted ownership and permissive use by the driver, plaintiffs and codefendants could not create a triable issue against TCF, so dismissal was appropriate.
Authorities Cited
- Vehicle and Traffic Law § 388
- Bunn v City of New York166 AD3d 491 (1st Dept 2018)
- Stanorski v Byrne Bros.82 AD2d 746 (1st Dept 1981)
- Matter of Morris v New York State Dept. of Taxation & Fin.82 NY2d 135 (1993)
- Matter of Franklin St. Realty Corp. v NYC Envtl. Control Bd.34 NY3d 600 (2019)
Parties
- Plaintiff
- Alvaro Dodaj et al.
- Defendant
- Total Concrete Flatwork, LLC
- Defendant
- Total Property Care Doing Business as Total Concrete
- Defendant
- Manuel A. Ramos et al.
- Attorney
- Law Office of Eric D. Feldman (Michael J. Kozoriz of counsel)
- Judge
- Ben R. Barbato
- Judge
- Webber, J.P.
- Judge
- Moulton
- Judge
- Mendez
- Judge
- Higgitt
- Judge
- Michael
Key Dates
- Appellate decision date
- 2026-05-05
- Supreme Court order date (denial of motion)
- 2025-04-15
What You Should Do Next
- 1
Entry of judgment
Clerk will enter judgment dismissing the complaint and cross-claims against Total Concrete Flatwork, LLC; the parties should confirm the entry and obtain a copy.
- 2
Consider appeal or leave application
If plaintiffs wish to challenge the dismissal of TCF, they should consult counsel immediately about seeking leave to appeal to the New York Court of Appeals and assess grounds and deadlines.
- 3
Proceed against remaining defendants
Plaintiffs should evaluate litigation strategy against Total Property Care and other codefendants, including discovery and trial preparation, since those claims remain.
Frequently Asked Questions
- What did the court decide?
- The appellate court granted summary judgment for Total Concrete Flatwork, LLC and dismissed the claims against it because it showed it did not own or control the vehicle and had no employment relationship with the driver.
- Who is affected by this decision?
- The decision affects the plaintiffs (Dodaj and others), TCF (now dismissed), and the remaining codefendants, including Total Property Care and the driver.
- Why was TCF dismissed while other defendants remain?
- TCF proved it was a separate corporate entity and had no ownership, control, or employment tie to the vehicle; Total Property Care admitted ownership and permissive use, which implicated it rather than TCF.
- Can this decision be appealed?
- Yes; the parties could seek further review to the Court of Appeals if they meet the criteria for leave to appeal, but the slip opinion itself does not state whether leave was sought.
The above suggestions and answers are AI-generated for informational purposes only. They may contain errors. NoticeRegistry assumes no responsibility for their accuracy. Consult a qualified attorney before relying on them.
Full Filing Text
Dodaj v Total Concrete Flatwork, LLC - 2026 NY Slip Op 02776 Dodaj v Total Concrete Flatwork, LLC 2026 NY Slip Op 02776 May 5, 2026 Appellate Division, First Department Alvaro Dodaj et al., Plaintiffs-Respondents, v Total Concrete Flatwork, LLC, Defendant-Appellant, Total Property Care Doing Business as Total Concrete, et al., Defendants, Manuel A. Ramos et al., Defendants-Respondents. Decided and Entered: May 05, 2026 Index No. 803790/24|Appeal No. 6521|Case No. 2025-02986| Before: Webber, J.P., Moulton, Mendez, Higgitt, Michael, JJ. Law Office of Eric D. Feldman, New York (Michael J. Kozoriz of counsel), for appellant. Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered on or about April 15, 2025, which denied defendant Total Concrete Flatwork, LLC's motion pursuant to CPLR 3211(a)(1) and (7) or, alternatively, for summary judgment dismissing the complaint and cross-claims against it, unanimously modified, on the law, to grant the motion for summary judgment, and otherwise affirmed, without costs. The Clerk is directed to enter judgment dismissing the complaint and cross-claims against Total Concrete Flatwork, LLC. While the court properly denied defendant Total Concrete Flatwork, LLC's (TCF) motion to the extent made pursuant to CPLR 3211, it should have granted the alternative relief for summary judgment dismissing the complaint and cross-claims against it. In this action involving a motor vehicle accident, TCF established prima facie that it did not own, operate, or control the subject vehicle ( see Vehicle and Traffic Law § 388; see e.g. Bunn v City of New York , 166 AD3d 491, 491-492 [1st Dept 2018]), and that it had no employment relationship with defendant driver. TCF is a corporate entity separate and apart from codefendant Total Property Care, doing business as Total Concrete ( see Stanorski v Byrne Bros. , 82 AD2d 746, 746 [1st Dept 1981]; see also Matter of Morris v New York State Dept. of Taxation & Fin. , 82 NY2d 135, 140-141 [1993]; Matter of Franklin St. Realty Corp. v NYC Envtl. Control Bd. , 34 NY3d 600, 604 [2019]). Plaintiffs and codefendants failed to raise a triable issue of fact, particularly as Total Property Care admitted ownership and permissive use of the vehicle by the driver. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: May 5, 2026