Makris Plousadis & Seiden, LLP, Woodbury, NY (Lorin A.
Donnelly of counsel), for appellant.
Aliazzo, McCloskey & Gonzalez, LLP, Great Neck, NY (Frank
Gonzalez of counsel), for plaintiff-respondent.
G. Sawyers, Melville, NY (Scott W. Driver of counsel), for
REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, COLLEEN D.
DUFFY, BETSY BARROS, JJ.
DECISION & ORDER
action to recover damages for personal injuries, the
defendant Allan Briteway Electrical Contractors, Inc.,
appeals from an order of the Supreme Court, Nassau County
(Janowitz, J.), dated July 8, 2015, which denied its motion
for summary judgment dismissing the complaint and all cross
claims insofar as asserted against it.
that the order is modified, on the law, by deleting the
provision thereof denying that branch of the appellant's
motion which was for summary judgment dismissing the cross
claim of the defendant Town of Hempstead for common-law
indemnification insofar as asserted against it, and
substituting therefor a provision granting that branch of the
motion; as so modified, the order is affirmed, with one bill
of costs to the respondents payable by the appellant.
plaintiff allegedly was struck by a motor vehicle driven by
the defendant Scott W. Rosen as she was walking in a parking
lot. On the date of the accident, Rosen was employed by the
defendant Allan Briteway Electrical Contractors, Inc.
(hereinafter the appellant). The appellant provided Rosen
with a vehicle stipend that paid for all of his vehicle's
expenses, and also provided and paid for his cell phone. At
the time of the accident, Rosen was on his way home and
pulled into the parking lot to stop at a food market. Rosen
was also on a phone call at the time, via hands-free
Bluetooth, with a vendor of the appellant.
plaintiff commenced this action against Rosen, the appellant,
and the Town of Hempstead to recover damages for personal
injuries. The complaint alleged, inter alia, that the Town
negligently designed and maintained the parking lot, and the
Town asserted cross claims against the appellant. The
appellant moved for summary judgment dismissing the complaint
and all cross claims insofar as asserted against it. The
Supreme Court denied the motion in its entirety on the ground
that there were triable issues of fact as to whether Rosen
was acting within the scope of his employment at the time of
the accident. We modify.
doctrine of respondeat superior renders a master vicariously
liable for a tort committed by his [or her] servant within
the scope of employment" (Meehan v County of
Suffolk, 144 A.D.3d 640, 641; see Scott v
Lopez, 136 A.D.3d 885, 886; Rivera v Fenix Car Serv.
Corp., 81 A.D.3d 622, 623). " Pursuant to this
doctrine, the employer may be liable when the employee acts
negligently or intentionally, so long as the tortious conduct
is generally foreseeable and a natural incident of the
employment'" (Scott v Lopez, 136 A.D.3d at
886, quoting Judith M. v Sisters of Charity Hosp.,
93 N.Y.2d 932, 933). "An employee's actions fall
within the scope of employment where the purpose in
performing such actions is to further the employer's
interest, or to carry out duties incumbent upon the employee
in furthering the employer's business'"
(Scott v Lopez, 136 A.D.3d at 886, quoting
Beauchamp v City of New York, 3 A.D.3d 465, 466).
"An action may also be considered to be within the scope
of employment when it is performed while the employee is
engaged generally in the business of the employer, or if the
act may be reasonably said to be necessary or incidental to
such employment"' (Scott v Lopez, 136
A.D.3d at 886, quoting Pinto v Tenenbaum, 105 A.D.3d
930, 931). "Employer responsibility is broad,
particularly where employee activity may be regarded as
incidental to the furtherance of the employer's
interest'" (Davis v Larhette, 39 A.D.3d
693, 694, quoting Gui Ying Shi v McDonald's
Corp., 110 A.D.3d 678, 679). "Whether an employee
was acting within the scope of his or her employment is
generally a question of fact for the jury" (Scott v
Lopez, 136 A.D.3d at 886, quoting Gui Ying Shi v
McDonald's Corp., 110 A.D.3d 678, 679).
the appellant failed to establish, prima facie, that Rosen
was not acting within the scope of his employment at the time
of the accident (see Scott v Lopez, 136 A.D.3d at
886; see generally Lundberg v State of New York, 25
N.Y.2d 467, 471). This failure to make the requisite prima
facie showing warranted the denial of that branch of its
motion which was for summary judgment dismissing the
complaint insofar as asserted against it, regardless of the
sufficiency of the opposing papers (see Alvarez v
Prospect Hosp., 68 N.Y.2d 320, 324; Winegrad v New
York Univ. Med. Ctr., 64 N.Y.2d 851, 853).
that branch of the appellant's motion which was for
summary judgment dismissing the Town's cross claim
alleging common-law indemnification insofar as asserted
against it, which was unopposed, should have been granted
(see Raquet v Braun, 90 N.Y.2d 177, 183; Mas v
Two Bridges Assoc., 75 N.Y.2d 680, 690; Rehberger v
Garguilo & Orzechowski, LLP, 118 A.D.3d 765;
Konsky v Escada Hair Salon, Inc., 113 A.D.3d 656).
appellant's remaining contentions are without merit.
RIVERA, J.P., CHAMBERS, DUFFY and ...