McGHEE v. [And Another Action] (1999)

Order, Supreme Court, Bronx County (Howard Silver, J.), entered on or about September 22, 1997, which granted defendants' motion for summary judgment dismissing the complaints, unanimously affirmed, without costs.

Plaintiff was allegedly assaulted, after a traffic accident, by a truck driver, who was employed by defendant New York Times as a deliveryman.   The assault was outside the scope of the driver's employment, and accordingly the Times cannot be held liable for plaintiff's injuries caused by the assault (Adams v. New York City Tr. Auth., 88 N.Y.2d 116, 643 N.Y.S.2d 511, 666 N.E.2d 216;  Kwak v. Wolfenson, 258 A.D.2d 418, 686 N.Y.S.2d 381;  Nicollette T. v. Hosp. for Joint Diseases, 198 A.D.2d 54, 603 N.Y.S.2d 146).   The record is clear that plaintiff's injuries were caused by the assault, and not the collision.   The statement of plaintiff's physician to the contrary was properly rejected as speculative, and not based on facts in the record.   We have considered plaintiff's remaining arguments and find them unavailing.

MEMORANDUM DECISION.