| Prystajko v Western N.Y. Pub. Broadcasting Assn. |
| 2008 NY Slip Op 10284 [57 AD3d 1401] |
| December 31, 2008 |
| Appellate Division, Fourth Department |
| Daria K. Prystajko, Respondent-Appellant, v Western New York PublicBroadcasting Association, Appellant-Respondent, et al., Defendants. |
—[*1] Edward C. Cosgrove, Buffalo, for plaintiff-respondent-appellant.
Appeal and cross appeal from an amended order of the Supreme Court, Erie County (John F.O'Donnell, J.), entered July 11, 2007 in a personal injury action. The amended order, insofar asappealed and cross-appealed from, denied in part and granted in part the motion of defendant WesternNew York Public Broadcasting Association for summary judgment dismissing the complaint against it.
It is hereby ordered that the amended order so appealed from is affirmed without costs.
Memorandum: Plaintiff commenced two actions, which were thereafter consolidated, seekingdamages for injuries she sustained when the motor vehicle she was operating collided with a vehicleoperated by defendant James W. Connors, an employee of Western New York Public BroadcastingAssociation (defendant). It is undisputed that Connors backed his vehicle into plaintiff's vehicle in anattempt to avoid a collision with a vehicle that was backing away from a lift gate at a parking lot ownedby defendant. Connors was attempting to drive home from work at the time of the accident. SupremeCourt granted that part of the motion of defendant for summary judgment dismissing the cause of actionbased on the doctrine of respondeat superior and denied that part of the motion of defendant withrespect to the negligence cause of action against it. We affirm.
Addressing first defendant's appeal, we reject defendant's contention that the court erred inamending its original order. According to the amended order and a statement of defendant in its brief onappeal, the original order had granted defendant's motion in its entirety, and the court amended itsunderlying memorandum and order in response to a letter from plaintiff's attorney. The letter, which isincluded in the record on appeal, states that plaintiff had two theories of liability, i.e., respondeatsuperior and the primary negligence of defendant, but the court in its original memorandum did notaddress plaintiff's second theory of liability. In its amended memorandum, the court addressed thatsecond theory, determining that there is an issue of fact whether a vehicle backing into plaintiff's vehiclewas a foreseeable consequence of a [*2]malfunctioning gate even if themalfunctioning constituted negligence, and that there is a further issue of fact whether defendant wasaware of "the gate problem prior to the accident." It is a well established principle that "[e]very courtretains a continuing jurisdiction generally to reconsider any prior intermediate determination it has made"(Aridas v Caserta, 41 NY2d 1059, 1061 [1977]; see Myers v T.C. Serv. of Spencerport, Inc., 16 AD3d 1105, 1105[2005]), and we conclude that the court did not err in doing so in this case.
Contrary to the further contention of defendant with respect to the negligence cause of actionagainst it, we conclude that defendant failed to establish its entitlement to judgment as a matter of lawand thus that the court properly denied that part of its motion." 'Questions concerning foreseeability and proximate cause are generally questions for the jury' " (Paul v Cooper, 45 AD3d 1485, 1487[2007]; see Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980], rearg denied52 NY2d 784, 829 [1980]). By its own submissions, defendant raised triable issues of fact whether theallegedly malfunctioning lift gate was a proximate cause of the accident and whether the allegedintervening acts were foreseeable (see generally Derdiarian, 51 NY2d at 315).
We conclude with respect to plaintiff's cross appeal that the court properly granted that part of themotion seeking summary judgment dismissing the cause of action based on the doctrine of respondeatsuperior. Under that doctrine, " 'an employer will be liable for the negligence of an employee committedwhile the employee is acting in the scope of his [or her] employment' " (Carlson v Porter[appeal No. 2], 53 AD3d 1129, 1131 [2008], quoting Lundberg v State of New York, 25NY2d 467, 470 [1969], rearg denied 26 NY2d 883 [1970]). "The doctrine of respondeatsuperior as it relates to an employee using his or her vehicle applies only where the employee is underthe control of his or her employer from the time that the employee enters his or her vehicle at the start ofthe workday until the employee leaves the vehicle at the end of the workday as in the case, forexample, of a traveling salesperson or repairperson" (Swierczynski v O'Neill [appeal No. 2],41 AD3d 1145, 1146-1147 [2007], lv denied 9 NY3d 812 [2007]). Here, it is undisputedthat Connors was returning home at the time of the accident and was not acting in furtherance of anyduty owed to defendant, nor was he under defendant's control. We therefore conclude that defendantmet its burden of establishing as a matter of law that it may not be held vicariously liable under thedoctrine of respondeat superior (see id. at 1147), and plaintiff failed to raise a triable issue offact in opposition (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).
All concur except Scudder, P.J., and Peradotto, J., who dissent in part and vote to modify inaccordance with the following memorandum:
Scudder, P.J., and Peradotto, J. (dissenting in part). We respectfully dissent in part inasmuch as wecannot agree with the majority that Supreme Court properly denied that part of the motion of WesternNew York Public Broadcasting Association (defendant) for summary judgment dismissing thenegligence cause of action against it. In our view, the inoperable lift gate "merely furnished the conditionor occasion for the [accident] but was not one of its causes" (Wechter v Kelner, 40 AD3d 747, 748 [2007], lv denied 9NY3d 806 [2007] [internal quotation marks omitted]; see Schiff v Possemato, 25 AD3d 839 [2006]; Tucker v Coca-ColaBottling Co. of Buffalo, 265 AD2d 819, 820-821 [1999]). Even assuming, arguendo, that the liftgate did not operate because of defendant's negligence, we conclude that neither the version of eventsas set forth by plaintiff or by defendant James W. Connors supports a finding that defendant'snegligence was a proximate cause of the accident. Indeed, it was not reasonably foreseeable that adriver would back into a stopped motor vehicle in the parking lot in order to permit the vehicle at theexit to maneuver away from the exit, which is plaintiff's version of the events. Nor, according toConnors' version of the events, was it foreseeable that a driver would operate his or her vehicle withoutheadlights and drive into a vehicle that was backing up in order to permit a third vehicle at the exit tomaneuver away from the exit. We therefore would modify the amended order by granting the motion ofdefendant in its entirety and dismissing the complaint against it. Present—Scudder, P.J., Hurlbutt,Fahey, Peradotto and Pine, JJ.