Baguma v. Walker , 599 N.Y.S.2d 603 ( 1993 )

Order, Supreme Court, Bronx County (Alan J. Saks, J.), entered March 30, 1992, which granted a motion by defendant Early Bird Messenger Service, Inc. ("Early Bird”) for summary judgment dismissing the complaint against it, reversed, on the law, and the motion denied, without costs.

On the morning of May 26, 1987, plaintiff was standing alongside his own parked car when he was struck and injured allegedly as a result of the negligent operation of a vehicle being driven by defendant Walker. At that time Walker was driving in the Bronx en route to his employment as a delivery messenger for Early Bird, whose headquarters were located on West 36th Street in Manhattan. According to Walker’s deposition testimony, he would travel to the Early Bird office in the morning and wait for a schedule of delivery assignments, for which he would be paid on a commission basis. Walker also testified that his employer understood that he would be utilizing his own vehicle, a 1977 Mercury Montego, to make the deliveries. When he was hired, Walker submitted his license, registration and insurance documents, and was told to report in the early morning for his assignments. He also stated that Early Bird required him to maintain commercial plates on his vehicle, but that he was not reimbursed for mileage, registration, insurance, or other costs in connection with the operation of his vehicle.

Based on the foregoing, Early Bird moved for summary judgment pursuant to CPLR 3212 on the ground that as an employer (the employer-employee relationship being conceded), it was not subject to respondeat superior liability when its employee was merely driving to and from work. As a general proposition, this is a sound statement of the prevailing law which the motion court applied in dismissing the complaint, citing Lundberg v State of New York (25 NY2d 467) and Matos v Depalma Enters. (160 AD2d 1163).

However, we conclude that the motion court (and likewise the dissent) has overlooked a long-recognized exception to the general rule where an issue is raised as to whether the employee’s operation of the car was within the scope of, and incidental to, his employment (Cooke v Drigant, 289 NY 313; see also, Matter of Carreras v McGuire, 87 AD2d 790). On this record a jury would be free to find that Walker’s use of the vehicle on the day of the accident was not simply to convey him to work, but rather that it was necessary for Walker to bring the vehicle to the Early Bird dispatching office for the benefit of the employer in conducting its business. Such a finding would trigger Early Bird’s respondeat superior liability if plaintiffs cause of action against Walker were to prevail. Concur—Milonas, Rosenberger and Wallach, JJ.