| Jacobi v Fish |
| 2009 NY Slip Op 08307 [67 AD3d 1376] |
| November 13, 2009 |
| Appellate Division, Fourth Department |
| Joseph Jacobi, Appellant, v Brian K. Fish et al., Defendants, andRoto-Rooter, Inc., et al., Respondents. |
—[*1] Jaeckle Fleischmann & Mugel, LLP, Buffalo (Heath J. Szymczak of counsel), fordefendants-respondents.
Appeal from an order of the Supreme Court, Erie County (Gerald J. Whalen, J.), enteredSeptember 2, 2008 in a personal injury action. The order granted the motion ofdefendants-respondents for summary judgment and denied the cross motion of plaintiff forpartial summary judgment.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries he sustainedwhen his vehicle collided with a van owned and operated by defendant Brian K. Fish, who wasemployed by defendants-respondents (hereafter, defendants). According to plaintiff, Fish wasacting within the scope of his employment at the time of the collision and defendants thereforeare vicariously liable for his negligence based on the doctrine of respondeat superior. SupremeCourt granted the motion of defendants for summary judgment dismissing the complaint againstthem and denied plaintiff's cross motion for partial summary judgment on liability based on thedoctrine of respondeat superior. We affirm.
We conclude that defendants met their initial burden by establishing as a matter of law thatFish was not acting within the scope of his employment at the time of the collision and thus thatthey did not exercise control over Fish at the time of the collision (see Lundberg v State ofNew York, 25 NY2d 467, 470-471 [1969], rearg denied 26 NY2d 883 [1970]), andplaintiff failed to raise a triable issue of fact (see generally Zuckerman v City of NewYork, 49 NY2d 557, 562 [1980]). "The doctrine of respondeat superior as it relates to anemployee using his or her vehicle applies only where the employee is under [*2]the control of his or her employer from the time that the employeeenters his or her vehicle at the start of the workday until the employee leaves the vehicle at theend of the workday as in the case, for example, of a traveling salesperson or repairperson"(Swierczynski v O'Neill [appeal No. 2], 41 AD3d 1145, 1146-1147 [2007], lvdenied 9 NY3d 812 [2007]).
In support of their motion, defendants submitted evidence establishing that the collisionoccurred after Fish had notified the dispatcher that he was finished working for the day. Indeed,it is undisputed that the accident occurred after Fish had driven a coworker home, in accordancewith a personal arrangement between Fish and the coworker (see Howard v Hilton, 244AD2d 912 [1997], lv denied 91 NY2d 809 [1998]).
Although an employer may be held vicariously liable for an employee's negligence whentraveling to or from work if there was a "dual purpose" to the travel, i.e., the employment created"the need to be on the particular route on which the accident occurred" (Cicatello vSobierajski, 295 AD2d 974, 975 [2002]; see Swartzlander v Forms-Rite Bus. Forms &Print. Serv., 174 AD2d 971, 972 [1991], affd 78 NY2d 1060 [1991]), that is not thecase herein. Defendants established that they did not direct employees to drive together and thatFish and his coworker agreed to carpool in order to conserve gasoline. It was that cost-sharingagreement between Fish and his coworker that necessitated the travel at the time of the collision,rather than Fish's employment with defendants.
Thus, "[a]lthough the issue whether an employee is acting within the scope of his or heremployment generally is one of fact, it may be decided as a matter of law in a case such as this,in which the relevant facts are undisputed" (Carlson v Porter [appeal No. 2], 53 AD3d1129, 1131 [2008], lv denied 11 NY3d 708 [2008]). Present—Centra, J.P., Fahey,Peradotto, Carni and Gorski, JJ.