Virtuoso v. Pepsi-Cola Laurel Bottling Co.

Appeal from an order and judgment (one paper) of the Supreme Court, Niagara County (John E Lane, J.), entered April 7, 2003. The order and judgment dismissed the complaint after a nonjury trial. [987] It is hereby ordered that the order and judgment so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: Plaintiffs appeal from an order and judgment dismissing their complaint following a bench trial. Plaintiffs commenced this action to recover damages for injuries sustained by plaintiff Dennis Virtuoso when the vehicle that he was driving collided with a vehicle driven by Paul G. Traver II, an employee of defendant. Contrary to plaintiffs’ contention, Supreme Court did not err in finding that Traver was not acting within the scope of his employment at the time of the accident (see generally Riviello v Waldron, 47 NY2d 297, 302-303 [1979]). “On a bench trial, the decision of the fact-finding court should not be disturbed upon appeal unless it is obvious that the court’s conclusions could not be reached under any fair interpretation of the evidence” (Claridge Gardens v Menotti, 160 AD2d 544, 544-545 [1990]). Here, the court’s decision is supported by the evidence (see Niemira v Dean, 245 AD2d 1068 [1997]). Present—Wisner, J.P., Hurlbutt, Kehoe, Martoche and Lawton, JJ.