         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1066
CA 12-00482
PRESENT: SCUDDER, P.J., SMITH, FAHEY, LINDLEY, AND MARTOCHE, JJ.


TALIA M. ROTH, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

KALEIDA HEALTH, DEFENDANT-RESPONDENT.
(ACTION NO. 1.)
-------------------------------------
PHILLIP LANDI, PLAINTIFF-APPELLANT,

                    V

KALEIDA HEALTH, DEFENDANT-RESPONDENT.
(ACTION NO. 2.)


LAW OFFICE OF J. MICHAEL HAYES, BUFFALO (J. MICHAEL HAYES OF COUNSEL),
FOR PLAINTIFF-APPELLANT PHILLIP LANDI.

LAW OFFICES OF EUGENE C. TENNEY, BUFFALO (COURTNEY G. SCIME OF
COUNSEL), FOR PLAINTIFF-APPELLANT TALIA M. ROTH.

RUPP, BAASE, PFALZGRAF, CUNNINGHAM & COPPOLA LLC, BUFFALO (R. ANTHONY
RUPP, III, OF COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeals from an order of the Supreme Court, Erie County (Joseph
R. Glownia, J.), entered September 30, 2011 in personal injury
actions. The order denied the motion of plaintiff Talia M. Roth for
summary judgment, granted the motion and cross motion of defendant for
summary judgment and dismissed the complaints.

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

     Memorandum: Plaintiffs commenced these actions seeking damages
for injuries they sustained when they were struck by a motor vehicle
while they were crossing the street at an intersection. The vehicle
was driven by defendant’s employee, an “on-call” nurse who was
traveling home from the hospital at the time of the accident. Supreme
Court properly granted defendant’s “motion and cross motion” for
summary judgment dismissing the complaint in action No. 2 and the
complaint in action No. 1, respectively. “ ‘An employer generally is
not liable for an employee’s negligence while the employee is
traveling to or from work because the element of control is lacking’ ”
(Cicatello v Sobierajski, 295 AD2d 974, 975; see D’Amico v Christie,
71 NY2d 76, 88). In cases such as this, involving allegedly
                                 -2-                         1066
                                                        CA 12-00482

employment-related travel, “ ‘the crucial test is whether the
employment created the necessity for the travel’ ” (Swartzlander v
Forms-Rite Bus. Forms & Print. Serv., 174 AD2d 971, 972, affd 78 NY2d
1060), i.e., the need to be on the particular route on which the
accident occurred (see Greer v Ferrizz, 118 AD2d 536, 538). Under the
dual purpose principle, “[i]f the travel would still have occurred
even [if] the business purpose [had been] canceled, then the employer
cannot be held liable” (Matos v Michele Depalma Enters., 160 AD2d
1163, 1164). Here, while defendant may have been able to exercise
some degree of control over its employee at the time of the accident
because he was “on-call,” defendant did not create the necessity for
the employee to take any particular route home after leaving the
hospital. We thus conclude as a matter of law that the employee’s
activities were not being controlled by defendant, nor was the
employee acting in furtherance of any duties owed to defendant by
returning home (see Lundberg v State of New York, 25 NY2d 467,
471-472, rearg denied 26 NY2d 883; Swartzlander, 174 AD2d at 972;
Matos, 160 AD2d at 1164; see generally Tenczar v Richmond, 172 AD2d
952, 952-953, lv denied 78 NY2d 859).




Entered:   September 28, 2012                  Frances E. Cafarell
                                               Clerk of the Court
