Opinion
February 16, 1999
Appeal from the Supreme Court, Queens County (Milano, J.).
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the cross motion of the defendant U-Haul Co. of New York, Inc., for summary judgment is denied.
The defendant Jorge Alvarenga (hereinafter Alvarenga), an employee of the defendant U-Haul Co. of New York, Inc. (hereinafter U-Haul), was directed by U-Haul to open a locked gate at the U-Haul Center in Queens upon his arrival for work at 9:00 A.M. On August 27, 1995, Alvarenga drove his uncle's car to the U-Haul Center, stopped the car in front of the gate, got out of the car, and opened the gate with a key given to him by his employer. U-Haul's customers then entered the U-Haul parking lot and the plaintiff, who was at the site to rent a truck for his sister, was allegedly struck by Alvarenga as Alvarenga drove into the U-Haul parking lot toward a parking spot. Under these circumstances, an issue of fact exists as to whether Alvarenga was acting within the scope of his employment at the time of the accident. Thus, the Supreme Court erred when it held, as a, matter of law, that U-Haul could not be held liable under the doctrine of respondeat superior, for the alleged tort of its employee, Alvarenga (see generally, Riviello v. Waldron, 47 N.Y.2d 297).
Mangano, P. J., Sullivan, Joy and Altman, JJ., concur.