Wolf v Cooper

[*1] Wolf v Cooper 2006 NY Slip Op 52446(U) [14 Misc 3d 1208(A)] Decided on December 20, 2006 Sup Ct, Richmond County Minardo, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 20, 2006
Sup Ct, Richmond County

Adam S. Wolf, Plaintiff,

against

Noel H. Cooper, PNC Leasing Corp. Sofia Hovav, Avshalomhovav, Garden State Laundry Systems, Inc. and Wascomat Distributors, Inc., Defendants.



10923/04

Philip G. Minardo, J.

Defendant Garden State Laundry Systems, Inc. (hereinafter "Garden State") moves for summary judgment dismissing the complaint pursuant to CPLR §3212 or in the alternative severing it from the imminent trial.

It appears the facts surrounding this motor vehicle accident are not in dispute. On July 29, 2003 defendant Noel H. Cooper, the employee and President of defendant Garden State went to his place of employment in Inwood, New York City. Then at the end of the day he traveled via his personal motor vehicle to Staten Island to meet a potential customer. After concluding this meeting he left with the intention of returning to his residence in New Jersey. Mr. Cooper traveled over various local roads and turned onto the entrance ramp for the Staten Island Expressway. The accident occurred as he was merging onto the Staten Island Expressway at about 3:00 P.M.

The determinant issue therefore is whether defendant Cooper was still within the scope of his employment at the time of the accident.

"Under the doctrine of respondent superior, an employer will be liable for the negligence of an employee committed while the employee is acting in the scope of his employment." (Lundberg v. State of New York, 25 NY2d 467, 470 [1969]; see Cunningham v. Petrilla, 30 AD3d 996 [4th Dept. 2006]). As a general rule, an employee driving to and from work is not acting in the scope of his employment" (Lundberg v. State of New York, supra at 471) "because the element of control is lacking" (Shumway v. Geneva Gen. Hosp., 233 AD2d 868; see Cicatello v. Sobierajski, 295 AD2d 974 [4th Dept. 2002]). Commuting to and from work is considered a strictly personal venture and thus the employee can not be considered as acting in furtherance of any duty owed to his employer, nor can it be said the employer can exercise any control over the employee's method or manner of driving. (See Cunningham v. Petrilla, supra at 997, 998).

"However, in cases such as this, involving allegedly employment-related travel, the crucial test is whether the employment created the necessity for the travel'" (Swartzlander v. [*2]Forms-Rite Bus. Forms Print. Serv., 174 AD2d 971, 972, quoting Matos v. DePalma Enters., 160 AD2d 1163, 164).

In the instant case defendant Cooper was acting within the scope of his employment when he decided to meet with a potential customer on Staten Island apparently on the way to his residence in New Jersey. "An exception this rule is, that an employee who uses his car in furtherance of his work is acting in the scope of his employment while driving home from his last business appointment , since such a person is working, and is under his employer's control, from the time he leaves the house in the morning until he returns at night." (Lundberg v. State of New York, supra at 471; see also Burdo v. Metropolitan Life Insurance Company, 279 NY 648 [1938] employer liable for employee returning home after calling upon and collecting premiums from the employer's policyholders; Shauntz v. Schwegler Brothers, Inc., 259 AD 446 [4th Dept. 1940] employer liable for employee repairman on his way home after making repairs at various job sites.

Accordingly, this court finds there to be issues of fact as to whether defendant Cooper was acting within the course and scope of his employment at the time of the accident. (See Shauntz v. Schwegler Brothers, Inc., supra t 448.

With regard to defendant Garden State's alternative request for severance, this court finds though defendant Garden State was recently made a direct defendant, it was a third-party defendant since the summer of 2006 and had an ample opportunity to complete discovery. Further, defendant Garden State was not a party on September 9, 2005 when partial summary judgment on the issue of liability was granted in favor of plaintiff therefore said order does not affect defendant Garden State.

Accordingly, defendant Garden State's motion for summary judgment and/or severance is denied in its entirety.

This shall constitute the decision and order of the court.

E N T E R,

______________________________

J. S. C.