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

184
CA 15-01337
PRESENT: CARNI, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.


UTICA NATIONAL INSURANCE GROUP, AS SUBROGEE OF
MARIANNE ELLIS AND MARK ELLIS,
PLAINTIFF-RESPONDENT,


                    V                             MEMORANDUM AND ORDER

OUR TOUCH, INC., DEFENDANT-APPELLANT,
AND ZURICH AMERICAN INSURANCE COMPANY,
DEFENDANT.


CARTAFALSA, SLATTERY, TURPIN & LENOFF, BUFFALO (MICHAEL J. LENOFF OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FELDMAN KIEFFER, LLP, BUFFALO (ADAM C. FERRANDINO OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Monroe County (Ann
Marie Taddeo, J.), entered March 6, 2015. The order, among other
things, granted plaintiff’s motion for partial summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by denying plaintiff’s motion and as
modified the order is affirmed without costs.

     Memorandum: In this insurance subrogation action, Our Touch,
Inc. (defendant) appeals from an order that granted plaintiff’s motion
for partial summary judgment on the issue of liability and denied
defendant’s cross motion for summary judgment dismissing the amended
complaint and for an order amending the caption to remove former
defendant Zurich American Insurance Company (Zurich) therefrom. We
conclude that Supreme Court erred in granting plaintiff’s motion for
partial summary judgment on the issue of liability but properly denied
that part of defendant’s cross motion seeking summary judgment
dismissing the amended complaint. Plaintiff established its
entitlement to judgment as a matter of law only on the specific issue
that defendant’s employee was within the scope of her employment at
the time she took a cigarette break (see Matter of Kontogiannis v
Nationwide PC, 51 AD3d 1180, 1181; Matter of Pabon v New York City Tr.
Auth., 24 AD3d 833, 833). Plaintiff failed to establish as a matter
of law, however, that any of defendant’s employees were responsible
for starting the fire and that their conduct fell below the standard
of due care (see Merchants Mut. Ins. Co. v Surrey Elec. Co., 130 AD2d
721, 722; see generally Ugarriza v Schmieder, 46 NY2d 471, 474).
                                 -2-                           184
                                                         CA 15-01337

Additionally, as we concluded on a prior appeal in this matter (Utica
Natl. Ins. Group v Our Touch, Inc., 109 AD3d 1182), defendant failed
to establish as a matter of law that the acts or omissions of its
employees did not cause the fire or did not rise to the level of
negligence, and plaintiff in any event raised triable issues of fact
(see Strnad v Garvin, 64 AD3d 1230, 1230, affd 13 NY3d 851; New York
Mun. Ins. Reciprocal v Casella Constr., Inc., 105 AD3d 1440, 1441).

     Although we decline to disturb the order on appeal insofar as it
denied that part of defendant’s cross motion seeking to amend the
caption, we note that the parties previously agreed, in a “so-ordered
stipulation of discontinuance” signed by the court, to the
discontinuance of plaintiff’s action against Zurich. We note that
future papers in the action should reflect that stipulation of
discontinuance by listing only current parties to the action.




Entered:   April 29, 2016                       Frances E. Cafarell
                                                Clerk of the Court
