Palumbo v. Prenga , 743 N.Y.S.2d 702 ( 2002 )

—Order, Supreme Court, Bronx County (Norman Ruiz, J.), entered January 17, 2002, which, to the extent appealed from, denied defendant-appellant’s motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

Plaintiff was allegedly injured when she was struck by a car driven by defendant Prenga, the superintendent of the building owned by defendant-appellant Notre Dame Housing Development Fund Company. Plaintiff seeks to recover damages from Notre Dame Housing upon a respondeat superior theory. Although Notre Dame maintains that Prenga was not acting within the scope of his employment at the time of the accident, the deposition testimony of its building manager appears to be to the contrary, and in view of that testimony there is, at the very least, a question of fact as to whether the employer “exercised any degree of control over its employee at the time of the accident” (see, Tucker v Melendez, 278 AD2d 488, 489). Concur—Williams, P.J., Tom, Saxe, Friedman and Marlow, JJ.