Opinion
June 14, 2001.
Order, Supreme Court, Bronx County (George Friedman, J.), entered January 31, 2001, which, in an action for personal injuries and wrongful death, granted defendants-respondents' motions for summary judgment dismissing the complaint and all cross claims against them, unanimously affirmed, without costs.
Michael D'Agostino, for plaintiff-appellant.
Deborah F. Peters Richard A. Kaplin, for defendants-respondents,.
Before: Nardelli, J.P., Tom, Ellerin, Buckley, Marlow, JJ.
As the motion court held, even if the grocery deliveryman, Martinez, were to be considered an employee of either of the moving defendants, the record establishes that he was on a personal errand when his vehicle struck plaintiff's decedent, neither making nor returning from a delivery. Therefore, the moving defendants cannot be held liable on the theory of respondeat superior (see, Lundberg v. State of New York, 25 N.Y.2d 467, 471; Matter of Marks v. Gray, 251 N.Y. 90, 93; Davis v. City of New York, 226 A.D.2d 271, lv denied 88 N.Y.2d 815).