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

162
CA 16-01208
PRESENT: SMITH, J.P., CARNI, LINDLEY, DEJOSEPH, AND NEMOYER, JJ.


TONI HAJDAJ, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

JESSICA M. ZUBIN AND HOWARD N. ZUBIN,
DEFENDANTS-APPELLANTS.


LAW OFFICE OF DANIEL R. ARCHILLA, BUFFALO (MARTHA E. DONOVAN OF
COUNSEL), FOR DEFENDANTS-APPELLANTS.

FEROLETO LAW, BUFFALO (JOHN FEROLETO OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Diane Y.
Devlin, J.), entered May 2, 2016. The order denied the motion of
defendants for summary judgment dismissing the complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this negligence action seeking
damages for personal injuries she allegedly sustained while riding in
a vehicle owned by defendants, Jessica M. Zubin and Howard N. Zubin,
and operated by Jessica (hereafter, defendant), who is plaintiff’s
coemployee. The accident occurred when defendant had a seizure, lost
control of the vehicle, and collided with a vehicle in front of her.
Defendants moved for summary judgment dismissing the complaint on the
ground that plaintiff’s sole remedy is the receipt of workers’
compensation benefits, and they appeal from an order denying the
motion. We affirm.

     It is settled law that receipt of benefits pursuant to
“[w]orkers’ compensation is the exclusive remedy of an employee
injured ‘by the negligence or wrong of another in the same employ’ ”
(Johnson v Del Valle, 98 AD3d 1290, 1291, quoting Workers’
Compensation Law § 29 [6]; see Macchirole v Giamboi, 97 NY2d 147, 150;
Naso v Lafata, 4 NY2d 585, 589, rearg denied 5 NY2d 861).
Nevertheless, it is equally well settled that the Workers’
Compensation Law does “not protect[] the coemployee, even though the
injured employee has accepted compensation benefits, when the
coemployee was not acting within the scope of his employment at the
time he [or she] inflicted the injury” (Maines v Cronomer Val. Fire
Dept., 50 NY2d 535, 544). Furthermore, “the question of whether
defendant was acting within the scope of her employment when the
                                 -2-                           162
                                                         CA 16-01208

accident occurred is separate and distinct from the question of
whether plaintiff was acting within the scope of her employment when
she was injured” (Jacobsen v Amedio, 218 AD2d 872, 873).

     Here, although defendants submitted evidence in support of their
motion establishing as a matter of law that plaintiff was acting
within the scope of her employment at the time of the accident (see
Correa v Anderson, 122 AD3d 1134, 1135), they failed to establish as a
matter of law that defendant was also acting within the scope of her
employment at the time (see Connell v Brink [appeal No. 1], 199 AD2d
1032, 1032; cf. Power v Frasier, 131 AD3d 461, 462-463).
Consequently, the court properly denied the motion.

     Finally, defendants’ further contention that the vicarious
liability provisions in Vehicle and Traffic Law § 388 are inapplicable
to defendant Howard N. Zubin is without merit. That contention is
premised on the applicability of Workers’ Compensation Law § 29 (6)
and, as discussed above, defendants failed to establish the
applicability of that statute as a matter of law (cf. Isabella v
Hallock, 22 NY3d 788, 792).




Entered:   February 3, 2017                     Frances E. Cafarell
                                                Clerk of the Court
