WEIMER v. Luis Martinez, Defendant.

Reset A A Font size: Print

Supreme Court, Appellate Division, First Department, New York.

Christine Minahan WEIMER, etc., Plaintiff-Appellant, v. FOOD MERCHANTS, INC., etc., et al., Defendants-Respondents, Luis Martinez, Defendant.

Decided: June 14, 2001

NARDELLI, J.P., TOM, ELLERIN, BUCKLEY and MARLOW, JJ. Michael D'Agostino, for Plaintiff-Appellant. Deborah F. Peters, Richard A. Kaplin, for Defendants-Respondents.

Order, Supreme Court, Bronx County (George Friedman, J.), entered January 31, 2001, which, in an action for personal injuries and wrongful death, granted defendants-respondents' motions for summary judgment dismissing the complaint and all cross claims against them, unanimously affirmed, without costs.

As the motion court held, even if the grocery deliveryman, Martinez, were to be considered an employee of either of the moving defendants, the record establishes that he was on a personal errand when his vehicle struck plaintiff's decedent, neither making nor returning from a delivery.   Therefore, the moving defendants cannot be held liable on the theory of respondeat superior (see, Lundberg v. State of New York, 25 N.Y.2d 467, 471, 306 N.Y.S.2d 947, 255 N.E.2d 177;  Matter of Marks v. Gray, 251 N.Y. 90, 93, 167 N.E. 181;  Davis v. City of New York, 226 A.D.2d 271, 641 N.Y.S.2d 275, lv. denied 88 N.Y.2d 815, 651 N.Y.S.2d 17, 673 N.E.2d 1244).