Hutton v City of New York
2012 NY Slip Op 31075(U)
April 16, 2012
Supreme Court, New York County
Docket Number: 109105/2009
Judge: Barbara Jaffe
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SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT
3F~ARBARA
JAFFE
+T
PART
-
Justlce
Index Number : 10910512009
HUTTON, ROBIN
vs .
CITY OF NEW YORK
SEQUENCE NUMBER : 003
SUMMARY JUDGMENT
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_
1
The following papsm, numbered 1 to
Notlce of MotlonlOrder to Show Ciuse
Answerlng Affldavlia
- Exhlblts
INDEX NO.
MOTION DATE
MOTION SEQ. NO.
CA L & 7
, were read on this motion tolfor
-Affldavlb - Exhlbltr
IN o
INo(r).
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)
.
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pow
Replylng Affldavlb
Upon tho foregolng papers, It lo ordered that thlo motlon Is
I.
FILED
APR 2 3 2012
NEW YORK
COUNTY CLERKS OFFICE
+
Dated:
'.r - 1
, J.S.C.
2'
BARBARA AFFE
AR 1 6 202
p
1. CHECK ONE:
.....................................................................
CASE DISPOSED
&&&AL
DISPOSITION
u GRANTED IN PART ,@OTHER
DENIED
........................... MOTION IS: GRANTED CI
(3 SUBMIT ORDER
3. CHECK IF APPROPRIATE: ................................................
0SETTLE ORDER
0DO NOT POST
FIDUCIARY APPOINTMENT
REFERENCE
2. CHECK AS APPROPRIATE:
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Index No. 109105/09
Plaintiff,
Motion Date:
Motion Seq. No.:
1/10/12
003
-againstDECISION AND ORDER
THE CITY OF NEW YORK, DEPARTMENT OF
TRANSPORTATION, NEW YORK CITY POLICE
DEPARTMENT and DOUGLAS C. KAY and
SPINE WAVE, INC.,
FILED
APR 2 3 2012
NEW YORK
COUNTY CLERKS OFFICE
For plaintiff:
Tobi R. Salottolo, Esq.
Proner & Proner
60 East 42"dSt., Ste. 144B
New York, NY 10165
212-986-3030
For defendant Spine Wave, Inc.:
Louis C. Annunziata, Esq.
Law Office of James Toomey
485 Lexington Ave., 7' F1.
New York, NY 10017
9 17-778-6600
For City defendants:
Lynn M. Leopold, ACC
New York City Law Department
Manhattan Trial Unit, Tort Division
100 Church St., 4' FI.
New York, NY 10007-2601
2 12-442-0398
For defendant Kay:
Lynn Golder, Esq.
Kay & Gray
875 Morrick Ave.
Westbury, NY 1 1590
5 16-229-4425
By notice of motion dated September 21,201 1, defendant Spine Wave, Inc. (Spine Wave)
moves pursuant to CPLR 3212 for an order dismissing the complaint and all cross claims against
it. Defendant Kay and defendants City of New York, Department of Transportation, and New
York City Police Department (collectively, City) oppose,
By notice of motion dated October 20,201 1, plaintiff moves pursuant to CPLR 3212(g)
for an order finding that Kay was in fwtherance of Spine Wave's business and acting within the
scope of his authority as an employee of Spine Wave at the time of the a c c i d e n t . F ~ $ e E ~ ~ G e o
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opposes.
By undated notice of motion, City moves pursuant to CPLR 321 l(a)(7) for an order
dismissing the complaint against it for failure to state a cause of action. Only Spine Wave
opposes.
I. BACKGROUND
On February 6,2009, as plaintiff crossed the intersection at East 72"d
Street and Second
Avenue in Manhattan, she was struck by a motor vehicle owned and operated by Kay, and
incurred physical injuries. (Afirmation of Louis C. Annunziata, Esq., dated Sept. 21, 201 1
[Annunziata Aff.], Exh. A). The roadway at the intersection was under construction, and a traffic
agent employed by City allegedly directed Kay to turn left onto Second Avenue, who thereupon
struck plaintiff with his vehicle. (Id.).
On or about June 26,2009, plaintiff served her summons and complaint. (Id.). On or
about April 16,2010, plaintiff served a supplemental summons and amended complaint adding
Spine Wave as an additional defendant (id., Exh. B), and on or about July 27,2010, Spine Wave
served its answer with cross claims against City and Kay (id.,
Exh. C).
\
On February 4,20 1 1, plaintiff testified at an examination before trial (EBT) that she
noticed cones and barriers and other construction-related material on the opposite corner of
Second Avenue toward which she was walking, including a drum that blocked a part of the
crosswalk, impeding her ability to walk in the crosswalk. There was a traffic agent in the
intersection directing cars to turn onto Second Avenue. She began to walk in the crosswalk with
the green light in her favor, and had crossed four lanes of traffic in the crosswalk when Kay's
vehicle hit her. Kay told her after the accident that he had not seen her before his vehicle
collided with her. (Id., Exh. F).
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At an EBT held on February 7,201 1, Kay testified that he was employed by Spine Wave
as a senior Product manager since July 2008, that he receives W-2 forms from Spine Wave, that
he does not work specific hours but was paid a fixed salary regardless of the number of hours he
worked each week, and that he is reimbursed for business expenses. He receives a salary and a
bonus from Spine Wave but no commissions. Kay uses his personal vehicle for travel related to
his work, sometimes works from home, and has a supervisor to whom he reports and with whom
he coordinates his schedule and work.
On the day of the accident, Kay had gone to Cornel1 Hospital as part of his job duties,
after which he stopped to get something to eat, and he got back into his vehicle with the intention
of driving back to Spine Wave's office where he would do some paperwork and work on various
projects. While waiting to turn left onto Second Avenue from 71" Street, Kay observed a traffic
agent directing traffic at the intersection. The traffic agent eventually directed him to turn left,
and he did so, but his vision was obstructed by construction cones and a concrete barrier and a
fence and poles at the co6er. Kay did not see plaintiff until right before his vehicle came into
contact with her, and he believed that she stepped into the side of his car as he was going through
the crosswalk. When he returned to his office after the accident that day, he performed his work
there. (Id., Exh. G).
At an EBT held on April 26,201 1, Sharon Garber, Spine Wave's Controller, testified that
in 2009 Spine Wave had a written policy of reimbursing its salespersons for expenses incurred
during their employment, that part of its salespersons' functions included traveling to medical
offices and hospitals, and that Kay was a salaried employee of Spine Wave who received sick
and vacation time. Spine Wave also hired independent contractors to sell its products, but only
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Spine Wave employees received a W-2 form at the end of the year. Neither the salespeople nor
the independent contractors hired by Spine Wave had regular work hours or work schedule. She
identified Kay as a senior product manager in the marketing department, rather than a
salesperson, with more duties than a salesperson. Kay was hired by Spine Wave pursuant to a
written contract that included a non-compete clause and set forth his employment duties and
expectations. He also received employee benefits including health insurance and participation in
a pension plan. (Id.,Exh. H).
JX. S P W W A V EâS AND PLAINTIFFâS MOTIOM
A. C o n t e n t m
Spine Wave argues that Kay was not acting within the scope of his employment at the
time of the accident as he had finished his morning appointment, had stopped to get food, and
had no specific time to return to work that day; as he did not fill out an aocident report for Spine
Wave nor did he believe he had to; and as he worked at his own convenience and not on a fixed
%
schedule. (Annunziata Aff.).
Kay contends that he was acting within the scope of his employment at the time of the
accident as he was on his way back to Spine Waveâs office to conduct work and in fact went to
the office after the accident to do so. (Lynn Golder, Esq., dated Oct. 21,201 1).
Ct asserts that as Kay was a salaried manager for Spine Wave, who had traveled to
iy
M n a t n that day for work and who intended to return to Spine Waveâs office after his
ahta
appointment, he was acting within the scope of his employment, and it is irrelevant that he failed
to inform Spine Wave that day about the accident. (Affirmation of Suzanne K. Colt, Esq., dated
Oct. 18,2010).
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Plaintiff maintains that as Kay was in Manhattan on the day of the accident in furtherance
of Spine Waveâs business and was on his way to Spine Waveâs office at the time of the accident,
there is no triable issue as to whether he was acting within the scope of Spine Waveâs
employment. (Affirmation of Tobi R. Salottolo, Esq., dated Oct. 20,20 11).
In reply, Spine Wave argues that Kay acted as an independent contractor as it did not
dictate his time, route, or means of travel that day. (Affirmation of Louis C. Annunziata, Esq.,
dated Nov. 14,2011).
An employer may be held liable for tortious acts committed by its employee when the
employee was âacting in furtherance of duties owed to the employer and where the employer is
or could be exercising some degree of control, directly or indirectly, over the employeeâs
activities:â (8B NY Jur 2d, Automobiles
6 1163 [2012]).
An employeeâs act is considered to be
within the scope of his or her employment âwhen it can fairly and reasonably be deemed to be an
ordinarysfld natural incident or attribute of the service to be rendered, or a natural, direct, or
logical result of it,â or, stated differently, when it is necessary to accomplish the purpose of the
employment or it was done while the employee was doing the employerâs work. (53 NY Jur 2d,
Employment Relations 6 41 7 [2012]). When the act is done while it involves travel by the
employee, the test is whether the employment necessitated the travel. (Id.). In determining
whether an employee is under an employerâs control, the factors to be considered include
whether the employee: (1) worked at his or her own convenience, (2) was free to engage in other
employment, (3) received fringe benefits, (4)was on the employerâs payroll, and ( 5 ) was on a
fixed schedule. (Bynogv Cipriani Group, h c . , 1 NY3d 193 [2003]).
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Here, Kay had driven into Manhattan in order to observe a surgery pursuant to his job
duties, had left the surgery and was driving to Spine Waveâs office to perform other work, and
after the accident, he went to the office and finished his work for the day. Thus, that he had
stopped to get something to eat while on his way to his office does not prove that he was not
acting within the scope of Spine Waveâs employment at the time of the accident as his
employment duties that day required that he drive his vehicle to and from Manhattan. (See
Dirnitrakukis v Bridgecorn Intl., Inc., 70 AD3d 885 [2d Dept 20101 [as employee was required to
drive vehicle to and from employerâs office, employer failed to establish that employee was not
acting within scope of employment when he got into accident after traveling from office to
home]; Davis v Larhette, 39 AD3d 693 [2d Dept 20071 [as defendantâs employment with
employer required regular and frequent travel, his activities of stopping for dinner while on
business trip and driving back to motel were incidental to employment, and thus within scope of
employment]; see also Margok v Volkswugen ofAm., Inc., 77 AD3d 1317 [4*Dept 20101
[employee was acting within scope of employment as $ was driving van for employerâs
e
business, had finished work at one location, and decided to stop for medication on way back to
employerâs garage]).
Nor is it accurate to say that Spine Wave had no control over his employment. Rather,
while Kay had certain autonomy related to his job duties for Spine Wave, he was expected to
complete those duties within specific timeframes set by his immediate supervisor and to work a
mininurn number of hours per week in order to satisfy his duties, he was on Spine Waveâs
payroll and received various employee benefits, including paid sick and vacation time and health
insurance, and he was hired pursuant to a contract containing a non-compete clause. (See Fenster
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v Ellis, 71 AD3d 1079 [2d Dept 20101 [employee worked for employer pursuant to contract with
non-compete clause, had no flexibility to refuse assignments, and was given rental vehicle to
Dept 20091
commute to work]; compare Armacida v D.G. Neary Realty Ltd., 65 AD3d 984 [lBt
[employee worked whatever hours he chose, did not report to or receive directions from anyone
at brokerage, received no health insurance benefits, and was Compensated only by
commissions]).
CITY s MOTION
AmContentions
City contends that it is entitled to dismissal as it may not be held liable for the actions of
the traffic agent. (Affmnation of Suzanne K. Colt, ACC, dated Oct. 21,2010). Spine Wave
argues that there are triable issues as to whether the traffic agent acted negligently in directing
Kay to turn at the intersection. (Affmnation of Louis C. Annunziata, Esq., dated Nov. 14,201 1).
B. Analysis
P
P
Although I denied Cityâs prior motion for summary judgment on the ground, inter alia,
that the construction at the intersection may have caused or contributed to plaintiffâs accident, no
evidence is offered to prove that the construction was related to Cityâs work or was owned or
controlled by City. I also observe that while plaintiff opposed Cityâs first motion, she does not
oppose the instant motion.
Moreover, a municipality may not be held liable for the allegedly negligent acts
committed by its employee during the course of managing or directing pedestrian or vehicular
traffic. (See Lewis v City ofNew Youk,82 AD3d 410 [lstDept 201 11, lv denied 16 NY3d 713
[City immune from liability for allegedly negligent conduct of traffic agent in directing trafic];
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Santos v County OfWestchesler, 81 AD3d 710 [2d Dept 201 11, lv denied 17 NY3d 705 [same];
Devivo v Adeyerno, 70 AD3d 587 [lut
Dept 20101 [City not liable for police officersâ alleged
negligence in configuring barricade at public event which allegedly caused vehicle to hit plaintiff
as âas it involved discretionary acts in managing pedestrian and vehicular traffic undertaken in
furtherance of public safetyâ]; Shands v Escalona, 44 AD3d 524 [lstDept 20071, Z denied 10
v
NY3d 705 [2008] [police officer guided plaintiffs vehicle onto highway]). City has thus
established entitlement to dismissal of plaintiffs claim that the traffic agentâs negligence caused
her accident
IV. CONCLUSION
Accordingly, it is hereby
ORDERED, that defendant Spine Wave, Inc.âs motion for summary judgment is denied;
it is further
I
ORDERED,that plaintiffs motion for summary judgment on liability is granted to the
\
extent of determining that defendant Kay was acting within the scope of his employment with
Spine Wave, h c . at the time of his accident with plaintiff; it is further
ORDERED, that the summary judgment motion of defendants The City of New York,
The New York City Department of Transportation, and The New York City Police Department is
granted, and the complaint and any cross claims are dismissed against said defendants with costs
and disbursements to defendants as taxed by the clerk of the court upon the submission of an
appropriate bill of costs, and the clerk of the court is directed to enter judgment accordingly; it is
further
ORDERED, that the remainder of the action shall continue; and it is Eurther
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ORDERED, that the Trial Support Office is directed to reassign this case to a non-City
part and remove it from the Part 5 inventory. Plaintiff is directed to serve a copy of this order on
all other parties and the Trial Support Ofice, 60 Centre Street, Room 158.
ENTER:
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FILED
APR 2 3 2012
DATED:
NEW YORK
April 16,201 1
New York, New York
( J
BARB &A F m U N T Y CLERKS OFFICE
J.S.C.
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APR 1 6 2012
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