| Dimitrakakis v Bridgecom Intl., Inc. |
| 2010 NY Slip Op 01452 [70 AD3d 885] |
| February 16, 2010 |
| Appellate Division, Second Department |
| Linda Dimitrakakis et al., Respondents, v BridgecomInternational, Inc., et al., Appellants, et al., Defendant. |
—[*1] Ingo Kuhfahl (James M. Lane, New York, N.Y., of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the defendants BridgecomInternational, Inc., and Bridgecom appeal, as limited by their notice of appeal and brief, from somuch an order of the Supreme Court, Westchester County (Smith, J.), entered July 16, 2009, asdenied that branch of their motion which was for summary judgment dismissing the first andthird causes of action insofar as asserted against them and so much of the fourth cause of actioninsofar as asserted against them as was based on a theory of respondeat superior.
Ordered that the order is affirmed insofar as appealed from, with costs.
On July 17, 2003, at approximately 4:50 p.m., the plaintiffs' vehicle was struck by a vehicledriven by nonparty Glen Rude, a salesman who worked for the defendants BridgecomInternational, Inc., and Bridgecom (hereinafter together Bridgecom). The plaintiffs commencedthis action against Bridgecom, among others, seeking to recover damages for personal injuriesand loss of spousal consortium. The first, third, and part of the fourth causes of action soughtrecovery on the theory that Bridgecom was liable for Rude's negligent operation of his vehiclepursuant to the doctrine of respondeat superior. Bridgecom unsuccessfully moved for summaryjudgment dismissing the complaint insofar as asserted against it. Bridgecom appeals from somuch of an order of the Supreme Court as denied that branch of its motion which was forsummary judgment dismissing the first and third causes of action insofar as asserted against itand so much of the fourth cause of action insofar as asserted against it as was based on thetheory of respondeat superior. We affirm the order insofar as appealed from.
The evidence submitted by Bridgecom established that although Rude reported toBridgecom's office in Valhalla in the morning, he typically would spend a few hours each day inthe field developing new business or visiting clients and customers. Bridgecom required Rude toprovide his own automobile for this purpose, and paid him a monthly stipend to compensate himfor his vehicle expenses. Rude was traveling from the office towards his home at the time of theaccident, but Rude could not remember whether he was intending to head straight home orwhether he intended to make a stop to visit an existing or potential client. In any event, since itwas necessary [*2]for Rude to bring his vehicle to and from theValhalla office for the benefit of Bridgecom in conducting its business, Bridgecom failed toestablish, as a matter of law, that Rude was not acting in furtherance of the employment-relatedduties he owed to it at the time of the accident. Thus, this case falls within the exception to thegeneral rule that an employer is not liable pursuant to the doctrine of respondeat superior whenits employee is merely driving to and from work (see Lundberg v State of New York, 25NY2d 467, 470-471 [1969]; Baguma v Walker, 195 AD2d 263, 264 [1993]).Accordingly, Bridgecom failed to make a prima facie showing of its entitlement to judgment as amatter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]), and theSupreme Court correctly denied that branch of Bridgecom's motion which was for summaryjudgment dismissing so much of the complaint insofar as asserted against it as sought recoverybased on the theory of respondeat superior. Fisher, J.P., Angiolillo, Belen and Lott, JJ., concur.