Lassen v Dunkin’ Donuts Inc., 2011 NY Slip Op 09173 [90 AD3d 537]

Dcmbr 20, 2011

Appellate Division, First Department

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Law Offices of Joseph B. Strassman, LLP, Huntington (Joseph B. Strassman of counsel), for appellant.

Quirk and Bakalor, P.C., New York (Richard H. Bakalor of counsel), for respondents.

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered on or about June 28, 2010, which granted defendants’ motion to dismiss the complaint, unanimously affirmed, without costs.

Plaintiff seeks damages for injuries he sustained when he was struck by a motor vehicle operated by an employee of defendants’ franchisees. Plaintiff’s theory of the case is vicarious liability based on agency. However, the pleadings allege no facts to substantiate the assertion that the motor vehicle operator was defendants’ agent (CPLR 3211 [a] [7]).

We have considered plaintiff’s remaining arguments and find them unavailing. Concur—Gonzalez, P.J., Mazzarelli, Andrias, Sweeny and RomÁn, JJ..