| Comerford v Brown |
| 2011 NY Slip Op 04405 [84 AD3d 1143] |
| May 24, 2011 |
| Appellate Division, Second Department |
| Susan Comerford, Respondent, v Mary E. Brown et al.,Defendants, Mitchell Samuels, Respondent, and Pinebourne Farms North et al., Appellants.(Action No. 1.) Mitchell Samuels, Respondent, v Mary E. Brown et al., Defendants, andPinebourne Farms North et al., Appellants. (Action No. 2.) |
—[*1] Leonard J. Tartamella, Hauppauge, N.Y., for plaintiff-respondent Susan Comerford. Eric S. Rosenblum, Levittown, N.Y., for Mitchell Samuels, defendant-respondent in actionNo. 1 and respondent in action No. 2.
In two related actions, inter alia, to recover damages for personal injuries, which were joinedfor trial, Pinebourne Farms North and Pinebourne Farms North, doing business as PinebourneFarms, defendants in both actions, appeal from an order of the Supreme Court, Nassau County(Parga, J.), entered August 5, 2010, which denied their motion for summary judgment dismissingthe complaint and cross claims insofar as asserted against them in action No. 1, and denied theirseparate motion for summary judgment dismissing the complaint insofar as asserted against themin action No. 2.
Ordered that the order is reversed, on the law, with one bill of costs, and the appellants'motions for summary judgment dismissing the complaint and cross claims insofar as assertedagainst them in action No. 1, and the complaint insofar as asserted against them in action No. 2,are granted.
On March 10, 2007, at approximately 3:29 p.m., Susan Comerford was a passenger on amotorcycle owned and operated by Mitchell Samuels. At that time, the motorcycle came intocontact with a vehicle allegedly owned by, among others, Brian M. Layne, Jr., and operated byMary E. Brown, on Route 106, in the Village of Muttontown in Nassau County. It wasundisputed that Brown was employed by the appellants on the date of the subject accident, as,inter alia, a groomer for their horses.[*2]
As a result of the accident, Comerford and Samuels eachbrought an action against, among others, the appellants, under the theory of respondeat superior.In an order dated November 30, 2007, the Supreme Court joined both actions for trial.Thereafter, the appellants moved for summary judgment. In the order appealed from, theSupreme Court denied the motions. We reverse.
The evidence relied upon by the appellants in support of their motions, specifically thedeposition testimony of Brown, was sufficient to establish, prima facie, that they could not beheld vicariously liable for Brown's negligence under the theory of respondeat superior, since shewas not acting within the scope of her employment when the accident occurred (seeFelberbaum v Weinberger, 54 AD3d 717 [2008]).
In opposition, Comerford and Samuels failed to raise a triable issue of fact as to whetherBrown was acting in the scope of her employment at the time of the accident (see generallyMonioudis v City of New York, 82 AD3d 945 [2011]; McCaffery v Wright & Co.Constr., Inc., 71 AD3d 842 [2010]; Inga v EBS N. Hills, LLC, 69 AD3d 568 [2010]).
Accordingly, the Supreme Court should have granted the appellants' motions for summaryjudgment. Dillon, J.P., Balkin, Eng and Roman, JJ., concur.