| Pinto v Tenenbaum |
| 2013 NY Slip Op 02557 [105 AD3d 930] |
| April 17, 2013 |
| Appellate Division, Second Department |
| Russell Pinto et al., Appellants, v MosheTenenbaum et al., Respondents. |
—[*1] John C. Buratti, Hicksville, N.Y. (Leonora Bloom of counsel), for respondent MosheTenenbaum. Rosenbaum & Taylor, P.C., White Plains, N.Y. (Dara L. Rosenbaum of counsel), forrespondents Horizon Care Center and Ocean Garden Nursing Facility, Inc.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, aslimited by their brief, from so much of an order of the Supreme Court, Kings County(Partnow, J.), dated September 13, 2011, as denied their cross motion pursuant to CPLR3126 to strike the separate answers of the defendant Moshe Tenenbaum and thedefendants Horizon Care Center and Ocean Garden Nursing Facility, Inc., and grantedthe motion of the defendants Horizon Care Center and Ocean Garden Nursing Facility,Inc., for summary judgment dismissing the amended complaint insofar as assertedagainst them.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs tothe defendants appearing separately and filing separate briefs.
The plaintiff Russell Pinto (hereinafter the injured plaintiff) allegedly was injuredwhen he was struck by a vehicle operated by the defendant Moshe Tenenbaum. At thetime of the accident Tenenbaum was employed by the defendants Horizon Care Centerand Ocean Garden Nursing Facility, Inc. (hereinafter together the Horizon defendants).The injured plaintiff, and his wife suing derivatively, commenced this action againstTenenbaum and the Horizon defendants, alleging that Tenenbaum was acting within thescope of his employment when the accident occurred. In the order appealed from, theSupreme Court granted the Horizon defendants' motion for summary judgmentdismissing the complaint insofar as asserted against them, and denied the plaintiffs' crossmotion pursuant to CPLR 3126 to strike the separate answers of Tenenbaum and theHorizon defendants.
The Supreme Court properly denied the plaintiffs' cross motion to strike the answersof Tenenbaum and the Horizon defendants. The determination of whether to strike ananswer pursuant to CPLR 3126 is addressed to the sound discretion of the trial court (see Rawlings v Gillert, 78AD3d 806 [2010]; Lomaxv Rochdale Vil., Inc., 76 AD3d 999 [2010]). However, the drastic remedy ofstriking an answer is inappropriate absent a clear showing that the failure to comply withdiscovery demands [*2]is willful or contumacious (see Laskin v Friedman, 90AD3d 617, 617-618 [2011]; Nunez v Long Is. Jewish Med. Ctr.-Schneider Children'sHosp., 82 AD3d 724 [2011]; Rawlings v Gillert, 78 AD3d at 806).Here, the plaintiffs failed to make such a showing.
The Supreme Court properly granted the Horizon defendants' motion for summaryjudgment dismissing the complaint insofar as asserted against them. An act is consideredto be within the scope of employment if it is performed while the employee is engagedgenerally in the business of the employer, or if the act may be reasonably said to benecessary or incidental to such employment (see Holmes v Gary Goldberg & Co., Inc., 40 AD3d 1033[2007]; Davis v Larhette,39 AD3d 693 [2007]). "An employee's actions fall within the scope of employmentwhere the purpose in performing such actions is to further the employer's interest, or tocarry out duties incumbent upon the employee in furthering the employer's business.Conversely, where an employee's actions are taken for wholly personal reasons, whichare not job related, his or her conduct cannot be said to fall within the scope ofemployment" (Beauchamp vCity of New York, 3 AD3d 465, 466 [2004] [internal quotation marks andcitations omitted]; seeDanner-Cantalino v City of New York, 85 AD3d 709 [2011]).
The Horizon defendants established, prima facie, that they could not be heldvicariously liable for Tenenbaum's alleged negligence under the theory of respondeatsuperior, since he was not acting within the scope of his employment when the accidentoccurred, through the submission of the deposition testimony of Tenenbaum and theHorizon defendants' president and chief operating officer (see Comerford v Brown, 84AD3d 1143 [2011]; Meloev Gardner, 40 AD3d 1055 [2007]). In opposition, the plaintiffs failed to raise atriable issue of fact. Accordingly, the Supreme Court properly granted the Horizondefendants' motion for summary judgment dismissing the complaint insofar as assertedagainst them. Balkin, J.P., Lott, Austin and Sgroi, JJ., concur.