Opinion
October 6, 1980
In a negligence action to recover damages for personal injuries, etc., plaintiffs appeal from an order of the Supreme Court, Nassau County, entered December 7, 1979, which dismissed their complaint on the ground that the action is barred by subdivision 6 of section 29 of the Workers' Compensation Law. Order affirmed, with $50 costs and disbursements, for the reasons set forth in the memorandum decision of Mr. Justice Pittoni at Trial Term. We would add, however, that plaintiffs' contention that subdivision 6 of section 29 of the Workers' Compensation Law does not bar this action insofar as it is based on a theory of respondeat superior, rather than on section 388 Veh. Traf. of the Vehicle and Traffic Law, need not be resolved in this case since the stipulated facts did not establish, inter alia, that the allegedly negligent driver, at the time of the accident, was acting in furtherance of the duties he owed to the defendant. (See Lundberg v. State of New York, 25 N.Y.2d 467.) Damiani, J.P., Gibbons, Margett and Martuscello, JJ., concur.