Correa v. Baptiste

—In an action to recover damages for personal injuries and wrongful death, etc., the defendant Frederick R. Harris, Inc., appeals from an order of the Supreme Court, Nassau County (Bucaria, J.), dated September 12, 2002, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it. Ordered that the order is reversed, on the law, with costs, the motion is granted, the complaint is dismissed insofar as asserted against the defendant Frederick R. Harris, Inc., and the action against the remaining defendant is severed. Generally, “[a]n employee driving to and from work is not acting within the scope of his employment because the element of control is lacking” (Tucker v Melendez, 278 AD2d 488 [2000]; see Donitz v Mui, 247 AD2d 508 [1998]; Cicatello v Sobierajski, 295 AD2d 974, 975 [2002]). Contrary to the conclusion of the Supreme Court, the appellant established, as a matter of law, that it bore no liability for the fatal accident that occurred while its employee commuted to work (see Lundberg v State of New York, 25 NY2d 467 [1969]; Tenczar v Richmond, 172 AD2d 952 [1991]). In opposition, the plaintiff failed to demonstrate the existence of a triable issue of fact (see Tucker v Melendez, supra; Donitz v Mui, supra; Howard v Hilton, 244 AD2d 912 [1997]). As such, the Supreme Court erred in denying the motion. The plaintiff’s remaining contentions are without merit. Ritter, J.P., McGinity, Townes and Mastro, JJ., concur.