| Ammirati v Arias |
| 2013 NY Slip Op 07700 [111 AD3d 771] |
| November 20, 2013 |
| Appellate Division, Second Department |
| Ray Ammirati, Appellant, v Edwin A. Arias,Defendant, and Alliance for Health, Inc., et al., Respondents. |
—[*1] Charles J. Siegel, New York, N.Y. (Robert S. Cypher, Jr., of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Kings County (Bayne, J.), dated April 13, 2012, whichgranted the motion of the defendants Alliance for Health, Inc., Accent Care, Inc., andAccent Care of New York, Inc., for summary judgment dismissing the complaint insofaras asserted against them.
Ordered that the order is reversed, on the law, with costs, and the motion of thedefendants Alliance for Health, Inc., Accent Care, Inc., and Accent Care of New York,Inc., for summary judgment dismissing the complaint insofar as asserted against them isdenied.
The plaintiff allegedly was injured when a vehicle driven by the defendant Edwin A.Arias ran over the plaintiff's foot as Arias was attempting to park near the Brooklynoffice of his employers, the defendants Alliance for Health, Inc., Accent Care, Inc., andAccent Care of New York, Inc. (hereinafter collectively the respondents). The plaintiffthereafter commenced this action to recover damages for personal injuries, and therespondents moved for summary judgment dismissing the complaint insofar as assertedagainst them, contending that Arias was not acting within the scope of his employmentwhen the accident occurred. The Supreme Court granted the motion.
The respondents failed to establish, prima facie, that they cannot be held vicariouslyliable for Arias's alleged acts, as the evidence submitted by the respondents did notsufficiently show that he was acting outside the scope of his employment when theaccident took place (see Riviello v Waldron, 47 NY2d 297, 302 [1979]). " 'Anact is considered to be within the scope of employment if it is performed while theemployee is engaged generally in the business of his [or her] employer, or if his [or her]act may be reasonably said to be necessary or incidental to such employment' " (Holmes v Gary Goldberg & Co.,Inc., 40 AD3d 1033, 1034 [2007], quoting Davis v Larhette, 39 AD3d 693, 694 [2007]). Here, Arias'sdeposition testimony raised a triable issue of fact as to whether he was deliveringdocuments from the respondents' Bronx office to their Brooklyn location at the time ofthe incident. Since the respondents failed to establish, prima facie, their entitlement tojudgment as a matter of law, we need not review the sufficiency of the plaintiff'sopposition papers, and the motion should [*2]have beendenied (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). Eng,P.J., Dickerson, Chambers and Hall, JJ., concur.