        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

972
CA 16-00302
PRESENT: SMITH, J.P., CARNI, LINDLEY, DEJOSEPH, AND SCUDDER, JJ.


MICHELLE M. FIGURA AND MATTHEW FIGURA,
PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

TIMOTHY W. FRASIER, DEFENDANT-RESPONDENT,
AND ZAYACHEK MECHANICAL, LTD., DEFENDANT-APPELLANT.


LAW OFFICES OF JOHN WALLACE, BUFFALO (JOHN WALLACE OF COUNSEL), FOR
DEFENDANT-APPELLANT.

WALSH, ROBERTS & GRACE, BUFFALO (MARK P. DELLA POSTA OF COUNSEL), FOR
PLAINTIFFS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Niagara County (Mark
Montour, J.), entered September 22, 2015. The order denied the motion
of defendant Zayachek Mechanical, Ltd., for summary judgment
dismissing the complaint and all cross claims against it.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the motion of defendant
Zayachek Mechanical, Ltd. is granted, and the complaint and all cross
claims against that defendant are dismissed.

     Memorandum: Plaintiffs commenced this action seeking damages for
injuries Michelle M. Figura (plaintiff) allegedly sustained when her
vehicle was rear-ended by a vehicle owned and operated by defendant
Timothy W. Frasier, who was employed by Zayachek Mechanical, Ltd.
(defendant). According to plaintiffs, Frasier was acting within the
scope of his employment at the time of the collision, and defendant is
therefore vicariously liable for Frasier’s alleged negligence based on
the doctrine of respondeat superior. Defendant moved for summary
judgment dismissing the complaint and all cross claims against it on
the ground that Frasier was not acting within the scope of his
employment at the time of the accident. We conclude that Supreme
Court erred in denying the motion.

     “Under the doctrine of respondeat superior, an employer will be
liable for the negligence of an employee committed while the employee
is acting in the scope of his [or her] employment . . . As a general
rule, an employee driving to and from work is not acting in the scope
of his [or her] employment . . . Although such activity is work
motivated, the element of control is lacking” (Lundberg v State of New
York, 25 NY2d 467, 470-471, rearg denied 26 NY2d 883; see Swierczynski
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                                                         CA 16-00302

v O’Neill [appeal No. 2], 41 AD3d 1145, 1146-1147, lv denied 9 NY3d
812; see also D’Amico v Christie, 71 NY2d 76, 88). “Although the
issue whether an employee is acting within the scope of his or her
employment generally is one of fact, it may be decided as a matter of
law in a case such as this, in which the relevant facts are
undisputed” (Carlson v Porter [appeal No. 2], 53 AD3d 1129, 1131, lv
denied 11 NY3d 708).

     Here, defendant established that Frasier was driving his
“personally owned motor vehicle” from his temporary residence to his
work site (Pugsley v Seneca Foods Corp., 145 AD2d 953, 953; see Correa
v Baptiste, 303 AD2d 355, 355), that he was not compensated for his
commute (see Rapini v Geneva Gen. Hosp., 233 AD2d 868, 868-869), and
that he was not “subject to control in how he chose to convey himself”
to work (Tortora v LaVoy, 54 AD2d 1036, 1037; see Matos v Depalma
Enters., 160 AD2d 1163, 1164). Defendant thus established that it was
not exercising any control over Frasier at the time of the accident
(see Lundberg, 25 NY2d at 470-471; cf. Makoske v Lombardy, 47 AD2d
284, 287-288, affd 39 NY2d 773).

      We conclude that plaintiffs failed to raise a triable issue of
fact (see generally Zuckerman v City of New York, 49 NY2d 557, 562).
Contrary to plaintiffs’ contention, the mere fact that Frasier carried
his own tools in his vehicle was insufficient to “transform the use of
the automobile into a special errand [for defendant] or an extension
of the employment” (Matter of Freebern v North Rockland CDA., 64 AD2d
300, 303; cf. Clark v Hoff Bros. Refuse Corp., 72 AD2d 936, 937;
Shauntz v Schwegler Bros., Inc., 259 App Div 446, 450; see generally
Matter of Trent, 20 AD2d 948, 948-949). Moreover, the fact that
Frasier drove a coworker to work that morning is of no significance
because he was not directed to do so, and the carpool was based on the
employees’ “personal arrangement” (Jacobi v Fish, 67 AD3d 1376, 1377;
see Howard v Hilton, 244 AD2d 912, 913, lv denied 91 NY2d 809; cf.
Makoske, 47 AD2d at 287-288). Finally, the fact that defendant paid
for lodging for Frasier while he was at a remote work site also does
not require a different finding inasmuch as defendant did not require
its employees to stay at the procured hotel, and the employees did not
have “to inform defendant of their whereabouts [outside of working
hours]” (Crawford v Westcott Steel Co., 188 AD2d 731, 732). We
therefore conclude that Frasier was not engaged in employment-related
travel at the time of the accident, and thus plaintiffs’ reliance on
the dual purpose doctrine is misplaced (see Swierczynski, 41 AD3d at
1147; cf. Margolis v Volkswagen of Am., Inc., 77 AD3d 1317, 1319). We
further conclude that plaintiffs failed to raise a triable issue of
fact whether defendant “ha[d] some special interest or derive[d] some
special benefit from [Frasier’s] use of [his personal] automobile in
going to and from work” (Fitzgerald v Lyons, 39 AD2d 473, 475; see
Ehlenfield v State of New York, 62 AD2d 1151, 1152, lv denied 44 NY2d
649).

     Although plaintiffs submitted evidence that Frasier informed his
insurance company that he “was out of town working at the time of the
accident,” that statement, alone, does not raise a triable issue of
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                                                         CA 16-00302

fact inasmuch as “[i]t is the employer and not the employee who must
establish the scope of the employee’s employment activities . . .
[T]his is not controlled by the employee’s belief[s]” (Matter of Tally
v Newberry Co., 30 AD2d 898, 899, affd 25 NY2d 945).




Entered:   November 10, 2016                   Frances E. Cafarell
                                               Clerk of the Court
