Opinion
Index E2019005288
06-04-2021
SUSAN R. CORY, AS EXECUTRIX WITH LETTERS TESTAMENTARY WITH LIMITATIONS OF THE ESTATE OF RICHARD J. MENGA, Plaintiff, v. PENFIELD CENTRAL SCHOOL DISTRICT and JENNIFER M. FICHERA, Defendants.
Unpublished Opinion
DECISION AND ORDER
Honorable Christopher S. Ciaccio Acting Supreme Court Justice
Defendant Penfield Central School District ("the District") has moved by Order To Show Cause, dated May 18, 2021, for an Order staying the trial of this action, which is scheduled for June 28, 2021.
A previous Order of this court denied a motion by the District for summary judgment, in which the District had argued that as a matter of law, it could not be held responsible for the actions of its employee, the defendant Fichera, because at the time of the accident she was not acting in furtherance of the District's activities.
The undisputed facts are that Fichera worked in the human resources division of the District, and had left the District's administrative offices on Five Mile Line Road in the Town of Penfield and was traveling to a meeting with several other employees to facilitate a discussion regarding benefits. Ordinarily she would have taken a right turn out of the District's office en route to a school located on Baird Road, but on the day of the accident, she turned left to go to a nearby (less than a half mile) Panera to buy cookies for the group with whom she was meeting. This, she testified, was something that was done routinely. As Fichera made her left turn she struck the decedent Richard J. Menga, who was crossing Five Mile Line Road. He was in the cross-walk and had his dog on a leash.
The District argues that a stay under CPLR 2201 is appropriate for three reasons.
One, a stay would promote court efficiency, conservation of resources, and protect the health and safety of jurors in a COVID-challenged environment. If there were a trial, and the Appellate Division reversed this court, the trial would have been for nought, as the personal insurance carrier for the driver has already tendered its policy of $250,000.00, and if the District were not a defendant, the case would be settled for that amount. Thus a trial of the matter, before the appeal, may ultimately turn out to have been unnecessary.
Secondly, a stay would not unduly prolong the plaintiffs wait to get her (and the Estate's) day in court. The appeal of this court's summary judgment order is scheduled to be argued the week of October 14, 2021. Assuming a decision within two months, a trial could be scheduled in January 2021.
Lastly, the District asserts it is likely to prevail on the appeal, as it is clear (so it is argued) that the defendant Fichera was not acting in furtherance of the work of the school district, which is education, not passing out cookies.
Plaintiff opposes, pointing out that case law regarding whether an employee is acting in furtherance of employment is almost always a question of fact for the jury, and that the plaintiff has been waiting now for two years since commencement to have what is a relatively uncomplex case with a relatively minimal set of facts, to be heard. A trial had been scheduled for 2020 but was adjourned because of COVID-19 concerns.
Discussion
This court, having previously ruled that there is at least a question of fact as to whether Fichera was operating her vehicle in furtherance of her duties as an employee of the District, stands by its decision and sees no benefit to delaying the trial. "The furtherance of interest question often turns on a decision of whether the employee's activity is incidental to the employer's business or is wholly separate and apart from it" (Makoske v Lombardy, 47 A.D.2d 284, 288 [3d Dept 1975], affd 39 N.Y.2d 773 [1976]).
Employer responsibility in this area has been deemed broad for a long time, "particularly where employee activity may be regarded as incidental to the furtherance of the employer's interest," (Makoske v Lombardy, 47 A.D.2d 284, 288 [3d Dept 1975], affd, 39 N.Y.2d 773 [1976]), and the general rule of thumb, as stated by the Court of Appeals, is that "Liability is the rule, immunity the exception" (Bing v Thunig, 2 N.Y.2d 656, 666 [1957]; Burns v. City of New York, 6 A.D.2d 30, 36 [1st Dept 1958]).
In Margolis v Volkswagen of Am., Inc., 77 A.D.3d 1317, 1319 (4th Dept 2010), the defendant, en route back to his place of work from another job-related site, intended to stop and buy headache medication. He made a wrong turn and ended up going straight back to the shop. This, the Fourth Department concluded, while constituting a departure from a designated activity, could be deemed "incidental to the furtherance of the employer's interest" (Id.).
That scenario is not too different from the case at bar. There was testimony on the record that Fichera or others had on previous occasions purchased refreshments en route to meetings with the intention of facilitating discussions. Fichera was not running a purely personal errand (and was not getting her lunch (compare Xin Tang Wu v Ng, 70 A.D.3d 818 [2d Dept 2020])), but was rather doing an act to benefit a District meeting (see Virtuoso v Pepsi-Cola Co., 286 A.D.2d 868, 868 [4th Dept 2001] [defendant/employee involved in an accident while en route to deliver a Christmas gift to a store manager. Held, issue of fact existed as to whether his errand was in furtherance of the employer's interest]).
While it is an exaggeration to state that almost all cases in this area are deemed to be questions of fact for a jury (see e.g. Wood v Brownlee, 188 A.D.3d 1713, 1715 (4th Dept 2020), rearg denied 191 A.D.3d 1405 (4th Dept 2021), it nonetheless remains the conclusion of this court that the issue of whether defendant Fichera was acting in the District's interest is one best left to the jury, and that the Appellate Division, Fourth Department will see it that way.
As to the arguments regarding court efficiency, even if the District were successful on appeal, a trial would still be necessary, as Fichera would still be a defendant in the case, and the plaintiff would be well within her rights to proceed to verdict and judgment, even if in excess of the policy limit and regardless of whether those limits had been tendered. Additionally, trials are being conducted in the Hall of Justice with adequate safety precautions in place to protect jurors.
Accordingly, it is hereby
ORDERED, that defendant Penfield Central School District's application for an order staying the trial of this action, pending resolution of the defendant's appeal, is DENIED; and it is further
ORDERED, that any additional relief requested by the respective parties, but not specifically addressed herein, is DENIED.