CICATELLO v. Buffalo Bills, Inc., Defendant-Appellant. (2002)

Plaintiffs commenced this action seeking to recover damages for injuries sustained by Janette M. Cicatello (plaintiff) when her vehicle collided with a vehicle operated by defendant R.J. Sobierajski and owned by defendant James A. Sobierajski (collectively, Sobierajskis).   Plaintiffs allege that Buffalo Bills, Inc. (defendant) is vicariously liable for the negligence of the Sobierajskis, who at the time of the accident were commuting home from their part-time jobs as game-day concessionaires of souvenirs and other novelty merchandise and who were carrying “excess merchandise” from the stadium to their home for storage between games.

 Supreme Court erred in failing to grant in its entirety the motion of defendant for summary judgment dismissing the amended complaint against it.  “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” (Shumway v. Geneva Gen. Hosp., 233 A.D.2d 868, 868, 649 N.Y.S.2d 288;  see D'Amico v. Christie, 71 N.Y.2d 76, 88, 524 N.Y.S.2d 1, 518 N.E.2d 896).   In cases such as this, involving allegedly 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 A.D.2d 971, 972, 572 N.Y.S.2d 537, affd. for the reasons stated 78 N.Y.2d 1060, 576 N.Y.S.2d 214, 582 N.E.2d 597, quoting Matos v. DePalma Enters., 160 A.D.2d 1163, 1164, 554 N.Y.S.2d 367), i.e., the need to be on the particular route on which the accident occurred (see Greer v. Ferrizz, 118 A.D.2d 536, 538, 499 N.Y.S.2d 758, citing Matter of Marks' v. Gray, 251 N.Y. 90, 167 N.E. 181).   Under that “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 (see, Bazan v. Bohne, 144 A.D.2d 168, 170, 534 N.Y.S.2d 496)” (Matos, 160 A.D.2d at 1164, 554 N.Y.S.2d 367 [internal quotation marks omitted] ).   We thus conclude as a matter of law (see generally Tenczar v. Richmond, 172 A.D.2d 952, 953, 568 N.Y.S.2d 232, lv. denied 78 N.Y.2d 859, 575 N.Y.S.2d 455, 580 N.E.2d 1058;  McBride v. County of Schenectady, 110 A.D.2d 1000, 1001, 488 N.Y.S.2d 288) that the Sobierajskis were not acting in furtherance of defendant's business or within the scope of the employment relationship at the time of the accident (see Lundberg v. State, 25 N.Y.2d 467, 471-472, 306 N.Y.S.2d 947, 255 N.E.2d 177, rearg. denied 26 N.Y.2d 883, 309 N.Y.S.2d 1032, 258 N.E.2d 223;  Shumway, 233 A.D.2d at 868-869, 649 N.Y.S.2d 288;  Swartzlander, 174 A.D.2d at 972, 572 N.Y.S.2d 537;  Matos, 160 A.D.2d at 1164, 554 N.Y.S.2d 367).

It is hereby ORDERED that the order insofar as appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is granted and the amended complaint against defendant Buffalo Bills, Inc. is dismissed.

MEMORANDUM: