Opinion
April 29, 1998
Appeal from the Supreme Court, Ontario County, Henry, Jr., J. — Summary Judgment.).
Present — Denman, P.J., Lawton, Boehm and Pallon, JJ.
Judgment affirmed without costs. Memorandum:
Defendant Nancy Glovers decedent, Evan M. Glover (Glover), a New York State employee who was also a union steward, a council leader in the Buffalo area for defendant New York State Public Employees Federation (PEP) and a member of the Labor/Management Committee of PEF, was involved in an accident with a tractor trailer operated by plaintiff on the New York State Thruway near Rochester. Glover was killed in the accident. Glover was traveling in a rental car to attend a meeting in Albany of PEP representatives and a Labor/Management Committee meeting scheduled for the next day. Committee members were reimbursed by PEP for their travel expenses, including car rental expenses.
Supreme Court properly granted the motion of PEP for summary judgment dismissing the complaint and cross claims against it and denied plaintiffs cross motion for summary judgment establishing PEP's vicarious liability for Glover's negligence.
"[T]he imposition of liability under the doctrine of respondeat superior requires, at minimum, an existing relationship between the employer and the third person who committed the tortious act" ( Loucks v. Community Home Care Servs., 209 A.D.2d 484; see, D'Amico v. Christie, 71 N.Y.2d 76, 89). There is no evidence of an employer-employee or principal-agent relationship between PEP and Glover. Glover was a union officer but, pursuant to the collective bargaining agreement, the State continued to pay him while he attended union meetings. The fact that Glover was reimbursed for travel expenses by PEP did not make him an employee of PEF. Glovers membership in the union was voluntary, and Glover was not paid by the union for his services on its behalf. Further, PEF lacked the control over Glover necessary to impose vicarious liability upon it for the conduct of Glover while traveling to attend the meeting ( see, Lundberg v. State of New York, 25 N.Y.2d 467, 470-471, rearg denied 26 N.Y.2d 883). The decision by Glover to use a rental car was a personal decision for which PEF bore no responsibility ( see, Howard v. Hilton, 244 A.D.2d 912). The mere fact that PEF had agreed to reimburse Glover for his travel expenses "did not bestow in it any right of control" ( Lundberg v. State of New York, supra, at 472).
All concur except Fallon, J., who dissents and votes to modify in the following Memorandum.
I respectfully dissent. In my view, Supreme Court erred in granting the motion of defendant New York State Public Employees Federation (PEP) for summary judgment. "The determination of whether a particular act was within the scope of a [n agent's] employment is so heavily dependent on factual considerations that the question is ordinarily one for the jury" ( Patterson v. Khan, 240 A.D.2d 644; see, Riviello v. Waldron, 47 N.Y.2d 297, 303). With respect to PEP's alleged vicarious liability, it is immaterial that PEP was not paying the salary of Evan M. Glover because vicarious liability may be imposed upon a principal for the tortious acts of an unpaid agent ( see, 53 N.Y. Jur.2d, Employment Relations, § 328). Although New York State paid his salary on the day of the accident, pursuant to the collective bargaining agreement, he had an "agency release" from his work for the day in order to attend the PEP meeting. Payment for his travel time could be deemed to create a right to control in the State, which was transferred to PEF ( see, Parke-Bernet Galleries v. Franklin, 26 N.Y.2d 13, 18-19; Hollant v. North Shore Hosp., 24 Misc.2d 892, 894, aff'd 17 A.D.2d 974). Further, Glover was not commuting to work at the time of the accident; rather, in his position as a PEP steward for his district in Buffalo, he had to drive to Albany in order to further the business of PEP and, as noted, he was paid for his travel time. "Although normally an employee driving to and from work is not acting within the scope of employment, an exception exists for "an employee who uses his car in furtherance of his work" ( Bazan v. Bohne, 144 A.D.2d 168, 169-170; cf., Lundberg v. State of New York, 25 N.Y.2d 467, 470-472, rearg denied 26 N.Y.2d 883). Therefore, there is an issue of fact whether Glover was the borrowed servant of PEP at the time in question and whether PEP had the right to exercise any control over Glover, including his means or method of travel.
Finally, the record is silent with respect to why, at the time of the accident, Glover was traveling westbound on the New York State Thruway, away from Albany, the location of his PEP business. Thus, there is an issue of fact whether, at the time of the accident, Glover was on a detour from his work for PEP and, if so, whether that detour was foreseeable ( see, Makoske v. Lombardy, 47 A.D.2d 284, 288, aff'd 39 N.Y.2d 773). "[E]mployer responsibility in this area is broad[,] `particularly where employee activity may be regarded as incidental to the furtherance of the employers interest" (Bazan v. Bohne, supra, at 170). The fact that, "prior to his tortious act, an employee may have combined business with pleasure does not necessarily relieve the employer of liability" ( James v. Eber Bros. Wine Liq. Corp., 153 A.D.2d 329, 334, lv denied 75 N.Y.2d 711, rearg dismissed 76 N.Y.2d 876).