Matter of IDS Prop. Cas. Ins. Co. v Wynter

Matter of IDS Prop. Cas. Ins. Co. v Wynter 2010 NY Slip Op 05475 [74 AD3d 637] June 22, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 25, 2010

In the Matter of IDS Property Casualty Insurance Co., Appellant,
v
Charles Wynter, Respondent.

—[*1] DeCicco, Gibbons & McNamara, P.C., New York (Phillip A. DeCicco and Daniel E. DeCicco of counsel), for appellant.

Robert P. Sharron & Associates, P.C., New York (Robert P. Sharron of counsel), for respondent.

Order, Supreme Court, New York County (Leslie S. Lowenstein, Special Referee), entered on or about February 26, 2010, which denied petitioner's application to stay arbitration of respondent's uninsured motorist claim, unanimously affirmed, without costs.

The record establishes that, at the time of the accident respondent was a passenger in an uninsured motor vehicle. He and the driver of the vehicle, a fellow employee, were on their way to a store where the driver intended to carry out a personal errand unrelated to work. Since respondent and the driver were not acting within the scope of their employment, workers' compensation, if it is a remedy, is not respondent's exclusive remedy (see Workers' Compensation Law § 29 [6]; Macchirole v Giamboi, 97 NY2d 147, 150 [2001]). Concur—Gonzalez, P.J., Andrias, Catterson, Renwick and Manzanet-Daniels, JJ.