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EVEN THOUGH DEFENDANT WAS NEGLIGENT AS A MATTER OF LAW BASED ON A VEHICLE AND TRAFFIC LAW VIOLATION, THERE WAS A QUESTION OF FACT WHETHER PLAINTIFF WAS COMPARATIVELY NEGLIGENT IN THIS REAR-END COLLISION CASE, DEFENDANT WAS DRIVING HIS OWN VEHICLE TO WORK AND WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT AT THE TIME OF THE ACCIDENT, EMPLOYER ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT).

The Second Department determined that plaintiff motorcyclist was not entitled to summary judgment in this rear-end collision case. Although defendant did move into the plaintiff’s lane ahead of plaintiff in violation of the Vehicle and Traffic Law, conflicting deposition testimony about whether plaintiff was comparatively negligent (i.e., whether plaintiff had time to react) raised a question of fact. Defendant’s employer was entitled to summary judgment because defendant was driving to work in his own vehicle, and was not acting within the scope of his employment at the time of the accident:

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A driver who has the right-of-way is entitled to anticipate that other drivers will obey the traffic laws requiring them to yield … . However, a driver with the right-of-way also has a duty to use reasonable care to avoid a collision … , and “[t]here can be more than one proximate cause of an accident” … . As a result, even where there is evidence that another driver involved in the accident was negligent as a matter of law due to a violation of the Vehicle and Traffic Law, a plaintiff moving for summary judgment has the burden of establishing freedom from comparative fault … . …

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The doctrine of respondeat superior renders a master vicariously liable for a tort committed by his [or her] servant within the scope of employment'” … . ” An act is considered to be within the scope of employment if it is performed while the employee is engaged generally in the business of his [or her] employer, or if his [or her] act may be reasonably said to be necessary or incidental to such employment'”… . Generally, “[a]n employee driving to and from work is not acting within the scope of his employment because the element of control is lacking” … .

[Defendant’s] deposition testimony demonstrated that, at the time of the accident, he was commuting to work from his home in his personal vehicle, he was not required to drive to work as part of his job, and he was not acting in furtherance of his employer’s business at the time …. . Beres v Terranera, 2017 NY Slip Op 05929, Second Dept 8-2-17

 

NEGLIGENCE (EVEN THOUGH DEFENDANT WAS NEGLIGENT AS A MATTER OF LAW BASED ON A VEHICLE AND TRAFFIC LAW VIOLATION, THERE WAS A QUESTION OF FACT WHETHER PLAINTIFF WAS COMPARATIVELY NEGLIGENT IN THIS REAR-END COLLISION CASE, DEFENDANT WAS DRIVING HIS OWN VEHICLE TO WORK AND WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT AT THE TIME OF THE ACCIDENT, EMPLOYER ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT))/TRAFFIC ACCIDENTS (EVEN THOUGH DEFENDANT WAS NEGLIGENT AS A MATTER OF LAW BASED ON A VEHICLE AND TRAFFIC LAW VIOLATION, THERE WAS A QUESTION OF FACT WHETHER PLAINTIFF WAS COMPARATIVELY NEGLIGENT IN THIS REAR-END COLLISION CASE, DEFENDANT WAS DRIVING HIS OWN VEHICLE TO WORK AND WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT AT THE TIME OF THE ACCIDENT, EMPLOYER ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT))/REAR-END COLLISIONS (EVEN THOUGH DEFENDANT WAS NEGLIGENT AS A MATTER OF LAW BASED ON A VEHICLE AND TRAFFIC LAW VIOLATION, THERE WAS A QUESTION OF FACT WHETHER PLAINTIFF WAS COMPARATIVELY NEGLIGENT IN THIS REAR-END COLLISION CASE, DEFENDANT WAS DRIVING HIS OWN VEHICLE TO WORK AND WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT AT THE TIME OF THE ACCIDENT, EMPLOYER ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT))/EMPLOYMENT LAW (NEGLIGENCE, VICARIOUS LIABILITY, DEFENDANT WAS DRIVING HIS OWN VEHICLE TO WORK AND WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT AT THE TIME OF THE ACCIDENT, EMPLOYER ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT))

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