Opinion
May 13, 1971
Appeal from an order of the Supreme Court at Special Term, entered September 2, 1970 in Sullivan County, which denied a motion for summary judgment dismissing the complaint. This negligence action was instituted to recover for personal injuries sustained in a collision on Saturday, June 11, 1966 while plaintiff was a passenger in an automobile owned by defendant Max M. Brender and operated by defendant Hathaway. Plaintiff submitted proof that he was employed by Max M. Brender and Beatrice Brender, partners doing business as Brender's Leghorns, in cleaning the office and that Hathaway was employed by said concern in the hatchery and in delivering baby chicks, same not being controverted by defendants. It also appears without dispute: that plaintiff was so employed every or nearly every Saturday morning for two and a half years or more; that Mr. Brender always sent someone to pick plaintiff up at his home and bring him to work; and that on the day in question Hathaway, in the employ of Brender's Leghorns and as he had done more or less every week, went and picked up plaintiff at his residence and was proceeding to the place of employment when the accident occurred. The germane facts being undisputed, the issue as to whether the accident arose out of and in the course of his employment should be determined as a matter of law ( Matter of Kaplan v. Zodiac Watch Co., 20 N.Y.2d 537, 539; Orange County Trust Co. v. Merchants Acceptance Corp., 279 App. Div. 689). When injuries to an employee occur in a conveyance furnished by the employer while carrying him to his work and the employer is bound by contract, express or implied, to furnish transportation, the work commences when the employee enters the conveyance and the journey is an incident to the employment ( Van Gee v. Korts, 252 N.Y. 241, 245; Michigan Mut. Liab. Co. v. State of New York, 31 A.D.2d 780, affd. 25 N.Y.2d 647). Since the employer always sent someone to bring plaintiff to work, such transportation was a consideration and incident of the employment and since the claimed injuries took place during one of said trips, the accident arose out of and in the course of the employment. Despite the fact that they performed different tasks plaintiff was an employee allegedly injured by the negligence or wrong of Hathaway, a fellow servant or "another in the same employ" ( Castle v. North End Contr. Corp., 21 A.D.2d 8; Fouquet v. New York Central Hudson Riv. R.R. Co., 123 App. Div. 804) and, pursuant to subdivision 6 of section 29 thereof, the right to compensation or benefits under the Workmen's Compensation Law is plaintiff's exclusive remedy. The ownership of the vehicle does not alter the situation ( Rauch v. Jones, 4 N.Y.2d 592). Order reversed, on the law, without costs; motion for summary judgment dismissing the complaint granted. Staley, Jr., J.P., Greenblott, Cooke, Sweeney and Simons, JJ., concur.