Supreme Court, Erie County, February 2, 2018

Law Offices of J. Michael Hayes, Buffalo (J. Michael Hayes of counsel), for plaintiffs.

Brown & Kelly, LLP, Buffalo (Renata Kowalczuk of counsel), for Edward J. Arnold, defendant.

Rupp Baase Pfalzgraf Cunningham LLC, Buffalo (Thomas Cunningham of counsel), for Trade Credit Insurance Agency, LLC, defendant.

By notice of motion dated December 8, 2017, the plaintiffs demand summary judgment against the defendants on liability, including negligence, proximate cause and serious injury, along with dismissal of the affirmative defense of comparative negligence. Further, plaintiffs seek a determination that the defendant Edward J. Arnold was "in the course of his employment" at the time of the alleged accident. In support of the motion the plaintiffs submitted the affirmation of attorney J. Michael Hayes, Esq., dated December 8, 2017, with attached exhibits, the affidavit of Antonio Cosmano, dated November 16, 2017, and the affirmation of Daniel J. Morelli, M.D., dated December 6, 2017. The defendant, Edward J. Arnold, by his attorneys Brown & Kelly, LLP, in a cross motion dated January 9, 2018, opposed the relief sought by the plaintiffs and pursued an order to compel the deposition of the plaintiffs. The defendant, Edward J. Arnold, in support of his relief submitted an affirmation of Renata Kowalczuk, Esq., dated January 9, 2017, with attached exhibits, the affirmation of John Wallace, Jr., Esq., dated January 9, 2017, with attached exhibits, and a memorandum of law dated January 9, 2018. The defendant, Trade Credit Insurance Agency, LLC (hereinafter referred to as Trade Credit), by its attorneys Rupp Baase Pfalzgraf Cunningham LLC, in a cross motion dated January 5, 2018, sought summary judgment and an order dismissing the plaintiffs' complaint and all cross claims. The defendant, Trade Credit, in support of its relief submitted the affirmation of Thomas P. Cunningham, Esq., dated January 5, 2018, with attached exhibits, an affidavit of Edward J. Arnold, dated November 28, 2017, and a memorandum of law. Oral argument upon the motions was held on January 25, 2018. Attorney J. Michael Hayes, Esq., appeared on behalf of the plaintiffs, attorney Renata Kowalczuk, Esq., appeared on behalf of defendant Arnold, and attorney Thomas P. Cunningham, Esq., appeared on behalf of the defendant Trade Credit.{**59 Misc 3d at 671}

At the conclusion of oral argument, the court reserved decision on whether defendant Arnold was "in the course of his employment" at the time of the alleged accident and put in place the following scheduling order:

• Deposition of the plaintiff, Antonio Cosmano, to be completed within 60 days from oral argument;

• All discovery completed by April 30, 2018; and

• Motion return date of May 8, 2018, at 9:30 a.m., to address the balance of the various relief requested by the parties.

On November 14, 2016, the plaintiff, Antonio Cosmano, was a pedestrian walking in a southerly direction on a sidewalk on the east side of Transit Road when he was struck by a vehicle driven by defendant Arnold. The accident occurred at approximately 12:30 p.m. Transit Road is a five lane highway with two lanes running in a north/south direction and a center turning lane. Defendant Arnold was traveling in his personal vehicle in a southerly direction before making a left-hand turn into the plaza where his office is located (5373 Transit Road, East Amherst, NY 14221), whereupon the plaintiff was struck and injured. Defendant Arnold indicated that he was returning to his business office from home following lunch when the accident occurred. The defendant Trade Credit is a limited liability company formed in 2011, and duly organized under the laws of the State of New York. The address registered with the Department of State for service of process is defendant Arnold's home address (140 Summershade Court, East Amherst, NY 14051). Defendant Arnold is the managing member of the defendant Trade Credit. As managing member defendant Arnold controls his work hours and schedule, controls the time he is at the office address, controls when he takes a lunch, controls the route he takes back and forth between home and office, controls the clients that he meets and the location of any meeting, and he controls the business work he does at home.

The plaintiffs maintain that the defendant Trade Credit is liable for the acts of its employee, defendant Arnold, under a theory of respondent superior. Defendant Trade Credit claims that defendant Arnold was home for lunch and refutes liability based upon the general rule that an employee driving to and from work is not acting within the scope of his employment.

It is undisputed that the defendant Arnold is the principal, owner and manager of Trade Credit and, as a result, defendant{**59 Misc 3d at 672} Arnold has "control" of his actions and the decisions he makes with respect to his workday. It is also without dispute that on the day of the accident:

• Defendant Arnold arrived at his business office at approximately 9:00 a.m.;

• Defendant Arnold left his business office at approximately 12:00 noon to head home for lunch;

• Defendant Arnold ate his lunch at home;

• At approximately 12:11 p.m., defendant Arnold received an email at home from his assistant. He likely reviewed the email;

• At approximately 12:19 p.m., defendant Arnold received a business phone call at his [*3]home from a client which lasted four minutes;

• Shortly thereafter defendant Arnold left his home and drove two miles back to his business office; and

• At 12:36 p.m., the injury accident occurred.

Further, defendant Arnold testified at his deposition:

• The home address (140 Summershade Court, East Amherst, NY) is the "legal address when we first established the business for Trade Credit Insurance Agency";

• Defendant Arnold admits to having an office located at 140 Summershade Court, East Amherst, NY and conducts work out of that office;

• Defendant Arnold works 24/7 and his formal work day is 9:00 a.m. to 5:00 p.m.;

• Defendant Arnold generally reviews and responds to emails and phone calls at all hours while he is home.

Also, without dispute:

• The New York State Department of State, Division of Corporations, recognizes the home address as the "address to which DOS will mail process if accepted on behalf of the entity."

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. (Alvarez v Prospect Hosp., 68 NY2d 320, 326 [1986]; Winegrad v New York Univ. Med. Ctr.,{**59 Misc 3d at 673} 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957].) Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. (Winegrad at 853.) Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to [*4]produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action. (Zuckerman at 562.) Although the issue of whether an employee is acting within the scope of his or her employment generally is one of fact, it may be decided as a matter of law in a case in which the relevant facts are undisputed. (See Figura v Frasier, 144 AD3d 1586 [4th Dept 2016]; Carlson v Porter, 53 AD3d 1129 [4th Dept 2008], lv denied 11 NY3d 708 [2008].)

Under the doctrine of respondeat superior, an employer will be liable for the negligence of an employee committed while the employee is acting in the scope of his employment. (Lundberg v State of New York, 25 NY2d 467 [1969]; Sauter v New York Tribune, Inc., 305 NY 442 [1953].) As a general rule, an employee driving to and from work is not acting in the scope of his employment. (See Smith v Fonda, 265 App Div 977 [3d Dept 1942].) Herein lies the conundrum. The defendant Arnold contends he left his business office to go home for lunch and upon returning to the business office the accident injuring the plaintiff came to pass. That being the case, the defendant Trade Credit cites the position that since defendant Arnold was driving from home to work at the time of the accident he then was outside the "control" of the employer and was acting beyond the scope of his employment. Therefore, liability cannot rest with Trade Credit. But for the "home exception" rule, Trade Credit would be correct in its assessment.

The home exception rule was analyzed by the Court of Appeals in Matter of Hille v Gerald Records (23 NY2d 135 [1968]). In Hille, the president of a recording company, Gerald Hille, was traveling from the corporate offices in New Jersey when the car in which he was homeward bound hit a utility pole and he was killed almost instantly. It was contended that Hille regularly would take tapes home for "playback" and "editing" purposes. The Court indicated that there was ample evidence to find that the decedent actually used his home as "a place of employment" to carry on his job (Hille at 139). It was demonstrated that Hille{**59 Misc 3d at 674}

"regularly took tapes home and there worked on them . . . ; . . . had work equipment at his home, in the form of a recorder owned by the corporation; and it was necessary and beneficial to his employer for him to perform duties at home in view of the lateness and irregularity of his working hours as well as of the custom in the trade." (Hille at 139.)

The Court referred to an authoritative writer in the labor field who explained the exception as where the work duties associated with the employee's home are such that it can genuinely be said that the home has become part of the employment premises, an accident occurring between work and home is compensable. (See Hille at 138.) The Court further commented that the quantity and regularity of work performed at home; the continuing presence of work equipment at home; and special circumstances of the particular employment that make it necessary and not merely personally convenient to work at home have been suggested as helpful "indicia" for determining such status. (Hille at 138.) If duties associated with the employee's home are such that it can genuinely be said that the home has become part of the employment premises, an accident occurring between work and home is compensable. (See Matter of Weimer v Wei-Munch Ltd., 117 AD2d 846 [3d Dept 1986].) Furthermore, a regular pattern of work at home can be such that the "home achieves the status of a place of employment." (See Matter of Fine v S.M.C. Microsystems Corp., 75 NY2d 912, 914 [1990].)

While Hille is a workman's compensation case decided in the 1960s, when tape recorders, [*5]manual typewriters, phonograph records and pocket calculators the size of notepads were prevalent, the arguments and findings continue to be applicable today. With the innovation of cell phones, iPads and other technological electronic advancements a person can have immediate access to files and information making work at home easier and less cumbersome.

Considering the undisputed facts, particularly the defendant Arnold's testimony that the home address, 140 Summershade Court, East Amherst, NY, is the "legal address when we first established the business for Trade Credit Insurance Agency," that defendant Arnold admits conducting business at home which benefits defendant Trade Credit, and that the New York{**59 Misc 3d at 675} State Department of State, Division of Corporations recognizes the home address as the "address to which DOS will mail process if accepted on behalf of the entity," this court finds that the home achieved the status of a place of employment and is classified as a business premises. Thus, in light of such finding, it is the court's determination that, at the time of the subject accident, defendant Arnold was travelling from one business location to another and was acting within the "scope of his employment." Therefore, the portion of plaintiffs' motion for summary judgment that requests a determination that defendant Arnold was acting within the scope of his employment at the time of the accident is granted.

This decision is limited to the fact pattern connected herewith. The court pointed out the distinctive undisputed facts and, like the Court of Appeals in Hille, does not intend to apply the rulings to "professional employees, such as teachers, doctors, lawyers and the like, who have frequent occasion to carry home work of varying degrees of importance and substantiality." (See Hille at 139.)