| Fenster v Ellis |
| 2010 NY Slip Op 02741 [71 AD3d 1079] |
| March 30, 2010 |
| Appellate Division, Second Department |
| Annie Fenster, Appellant, v Keith Ellis et al., Defendants,and NASC, Inc., et al., Respondents. |
—[*1] Jones Hirsch Connors & Bull P.C., New York, N.Y. (Peter S. Read of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals from so much ofan order of the Supreme Court, Orange County (McGuirk, J.), dated January 7, 2009, as grantedthat branch of the motion of the defendants NASC, Inc., and North American Sports Campswhich was for summary judgment dismissing the complaint insofar as asserted against them, anddenied her cross motion for summary judgment on the issue of the liability of the defendantKeith Ellis and on the issue of the vicarious liability of the defendants NASC, Inc., and NorthAmerican Sports Camps.
Ordered that the order is modified, on the law (1) by deleting the provision thereof grantingthat branch of the motion of the defendants NASC, Inc., and North American Sports Campswhich was for summary judgment dismissing the complaint insofar as asserted against them, andsubstituting therefor a provision denying that branch of the motion, and (2) by deleting theprovision thereof denying that branch of the plaintiff's cross motion which was for summaryjudgment on the issue of the liability of the defendant Keith Ellis, and substituting therefor aprovision granting that branch of the cross motion; as so modified, the order is affirmed insofaras appealed from, without costs or disbursements.
The plaintiff allegedly sustained injuries during an automobile accident. The plaintiff allegedthat she was driving her vehicle in a northerly direction when a vehicle operated by thedefendant Keith Ellis, which had been stopped in the southbound lane, made a sudden left turn toenter a shopping center, and struck her vehicle. As a result, the plaintiff commenced this actionagainst, among others, Keith Ellis and his alleged employers NASC, Inc., and North AmericaSports Camp (hereinafter together NASC). NASC moved for summary judgment, contendingthat Ellis was not its employee and that in any event, Ellis was not acting within the scope of hisemployment at the time of the accident. The plaintiff cross-moved for summary judgment on theissue of the liability of the defendant Ellis and on the issue of the vicarious liability of NASC.The Supreme Court granted NASC's motion and denied the plaintiff's cross motion. We modify.
"The doctrine of respondeat superior renders a master vicariously liable for a tort [*2]committed by his servant while acting within the scope ofemployment" (Quadrozzi v Norcem, Inc., 125 AD2d 559, 561 [1986]; see Riviello vWaldron, 47 NY2d 297, 302 [1979]; O'Boyle v Avis Rent-A-Car Sys., 78 AD2d 431[1981]). "The determination of whether an employer-employee relationship exists turns onwhether the alleged employer exercises control over the results produced, or the means used toachieve the results. Control over the means is the more important consideration" (Abouzeid vGrgas, 295 AD2d 376, 377 [2002]). "Factors relevant to assessing control include whetherthe worker (1) worked at his own convenience, (2) was free to engage in other employment, (3)received fringe benefits, (4) was on the employer's payroll and (5) was on a fixed schedule"(Bynog v Cipriani Group, 1 NY3d 193, 198 [2003]).
Additionally, an employer cannot be held vicariously liable for its employee's allegednegligence if the employee was acting solely for personal motives unrelated to the furtherance ofthe employer's business at the time of the incident (see Carnegie v J.P. Phillips, Inc., 28AD3d 599 [2006]; State Farm Ins. Co. v Central Parking Sys., Inc., 18 AD3d 859[2005]; Agostino v Pennysaver Group, 284 AD2d 353 [2001]). An act is considered tobe within the scope of employment if it is performed while the employee is engaged generally inthe business of his employer, or if his act may be reasonably said to be necessary or incidental tosuch employment (see Matter of Markoholz v General Elec. Co., 13 NY2d 163 [1963];Holmes v Gary Goldberg & Co., Inc., 40 AD3d 1033 [2007]; Davis v Larhette,39 AD3d 693 [2007]; Smith v Midwood Realty Assoc., 289 AD2d 391 [2001]).
NASC failed to submit evidence sufficient to establish, prima facie, that Ellis was not itsemployee or that if he was an employee, he was not acting within the scope of his employment atthe time of the accident (see Bynog v Cipriani Group, 1 NY3d 193 [2003]; Riviello vWaldron, 47 NY2d 297 [1979]). According to the NASC employees, at the time of theaccident, Ellis worked for NASC pursuant to a contract which contained a "noncompete clause,"had no flexibility to refuse assignments, and was provided with a rental vehicle to commute towork. No evidence was submitted as to why Ellis was driving at the time of the accident.
That branch of the plaintiff's cross motion which was for summary judgment on the issue ofliability against Ellis should have been granted. The plaintiff established, prima facie, that Ellismade a left turn into the path of her vehicle without yielding the right-of-way, and undercircumstances when the turn could not be made with reasonable safety. The plaintiff, who hadthe right-of-way, was entitled to anticipate that Ellis would obey the traffic law which requiredhim to yield, and his violation of Vehicle and Traffic Law § 1141 was the sole proximatecause of the accident (see Torro v Schiller, 8 AD3d 364 [2004]). The Supreme Court,however, properly denied that branch of the plaintiff's cross motion which was for summaryjudgment on the issue of NASC's vicarious liability for Ellis' negligence. Even if Ellis was anemployee of NASC at the time of the accident, the plaintiff failed to submit evidence sufficientto establish, prima facie, that Ellis was acting within the scope of his employment at the time ofthe accident (see Riviello v Waldron, 47 NY2d 297 [1979]).
The plaintiff's remaining contentions are without merit. Skelos, J.P., Florio, Hall and Austin,JJ., concur.