Opinion
December 29, 1993
Appeal from the Supreme Court, Erie County, Francis, J.
Present — Green, J.P., Balio, Lawton, Fallon and Davis, JJ.
Order unanimously reversed on the law without costs, motion denied and complaint reinstated. Memorandum: Supreme Court should have denied defendant's motion for summary judgment dismissing the complaint. Defendant failed to establish, as a matter of law, that plaintiff's negligence cause of action against him, a coemployee, is barred by the exclusivity provisions of Workers' Compensation Law § 29 (6). To have the protection of that statute, a defendant must himself have been in the course of his employment at the time of the injury (see, Maines v Cronomer Val. Fire Dept., 50 N.Y.2d 535, 543). The record establishes that defendant left his office at the State University of New York at Buffalo Amherst and was en route to his home when his car struck plaintiff. We are unable to conclude, as a matter of law, whether, at the time of the accident, defendant was acting in the course of his employment within the meaning of the Workers' Compensation Law (cf., Manzoni v Hoffarth, 134 A.D.2d 838, 839).