Opinion
November 25, 1991
Appeal from the Supreme Court, Suffolk County (Tanenbaum, J.).
Ordered that the appeal from the order dated September 6, 1990, is dismissed, as that order was superseded by the order entered December 11, 1990, made upon reargument; and it is further,
Ordered that the order entered December 11, 1990, is affirmed insofar as appealed from; and it is further,
Ordered that the respondent is awarded one bill of costs.
Generally, a worker traveling to and from work is not acting within the scope of employment because the element of control by the employer is lacking (see, D'Amico v. Christie, 71 N.Y.2d 76, 88; Johnson v. Daily News, 34 N.Y.2d 33; Lundberg v. State of New York, 25 N.Y.2d 467). We agree with the Supreme Court that the plaintiff has failed to establish the existence of any triable issue of fact as to whether the defendant Newman was using her automobile in the furtherance of work activity of her employer Coughlin, Foundotof Danowski, or that her employer exercised any degree of control over her at the time of the accident. The plaintiff's claim that additional discovery is required before a summary judgment determination may be made is without merit. Thompson, J.P., Rosenblatt, Miller and Ritter, JJ., concur.