Fein v. Cook

• Decision Date: 26 September 2017
• Parties: Randall FEIN, etc., Plaintiff–Appellant, v. Neil L. COOK, Defendant, Asphalt Green, Inc., Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

153 A.D.3d 1168

61 N.Y.S.3d 10

Randall FEIN, etc., Plaintiff–Appellant,

v. Neil L. COOK, Defendant,Asphalt Green, Inc., Defendant–Respondent.

Supreme Court, Appellate Division, First Department, New York.

Sept. 26, 2017.

Clyde & Co., New York (Jeffrey J. Ellis of counsel), for appellant.

Rutherford & Christie, LLP, New York (Michael C. Becker of counsel), for respondent.

SWEENY, J.P., RENWICK, KAPNICK, KERN, MOULTON, JJ.

Order, Supreme Court, New York County (Richard F. Braun, J.), entered August 22, 2016, which granted defendant Asphalt Green, Inc.'s (AGI) motion for summary judgment, to the extent of dismissing the amended complaint as against it, unanimously affirmed, without costs.

Decedent died from injuries sustained when, while in the middle of a crosswalk in Central Park, he was struck by a bike ridden by defendant Neil Cook, a bicyclist and coach employed by AGI, which operates, among other things, a fitness facility on the Upper East Side.

The motion court correctly determined that AGI could not be held vicariously liable for Cook's alleged negligence, as Cook was acting outside the scope of his employment. At the time of the accident, Cook was engaged in a weekend bicycle ride, in a public park, using a bicycle that he purchased and equipped, was alone and was not coaching anyone, and was not acting in furtherance of any duties owed to AGI (see Riviello v. Waldron, 47 N.Y.2d 297, 418 N.Y.S.2d 300, 391 N.E.2d 1278 [1979] ; Weimer v. Food Merchants, 284 A.D.2d 190, 726 N.Y.S.2d 423 [1st Dept.2001] ).

Cook's unsupported belief, as set forth in an affirmative defense, that his bicycle riding had a work component to it, and his unsworn Response to the Notice to Admit (see CPLR 3123[a] ), which improperly sought admissions as to employment status, a contested issue central to the action (see Berg v. Flower Fifth Ave. Hosp., 102 A.D.2d 760, 476 N.Y.S.2d 895 [1st Dept.1984] ), do not create triable issues of fact as to whether Cook was acting in the scope of employment. Unlike in Aycardi v. Robinson , 128 A.D.3d 541, 9 N.Y.S.3d 262 (1st Dept.2015), relied upon by plaintiff, there is no indication that AGI was exercising any control over Cook at the time of the accident (see Lundberg v. State of New York, 25 N.Y.2d 467, 306 N.Y.S.2d 947, 255 N.E.2d 177 [1969] ).

The motion court correctly dismissed plaintiff's direct negligence claim against AGI. There is no evidence that AGI knew or should have known of Cook's alleged propensity to dangerously ride his...