VIRTUOSO v. PEPSI COLA LAUREL BOTTLING COMPANY INC (2004)

Plaintiffs appeal from an order and judgment dismissing their complaint following a bench trial.   Plaintiffs commenced this action to recover damages for injuries sustained by plaintiff Dennis Virtuoso when the vehicle that he was driving collided with a vehicle driven by Paul G. Traver II, an employee of defendant.   Contrary to plaintiffs' contention, Supreme Court did not err in finding that Traver was not acting within the scope of his employment at the time of the accident (see generally Riviello v. Waldron, 47 N.Y.2d 297, 302-303, 418 N.Y.S.2d 300, 391 N.E.2d 1278).  “On a bench trial, the decision of the fact-finding court should not be disturbed upon appeal unless it is obvious that the court's conclusions could not be reached under any fair interpretation of the evidence” (Claridge Gardens v. Menotti, 160 A.D.2d 544, 544-545, 554 N.Y.S.2d 193).   Here, the court's decision is supported by the evidence (see Niemira v. Dean, 245 A.D.2d 1068, 666 N.Y.S.2d 75).

It is hereby ORDERED that the order and judgment so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: