Opinion
Argued November 30, 2000.
December 27, 2000.
In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Dutchess County (LaCava, J.), dated November 19, 1999, which granted the motion of the defendant Hai Soo Na d/b/a/ Brian's Sport Shop, for summary judgment dismissing the complaint insofar as asserted against it.
Vergilis, Stenger, Roberts Pergament, Wappingers Falls, N Y (Antonia T. Lucia of counsel), for appellants.
McCormick Turpin, Pearl River, N.Y. (Jill E. O'Sullivan of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., MYRIAM J. ALTMAN, GLORIA GOLDSTEIN, LEO F. McGINITY, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
An employee driving to and from work is not acting within the scope of his employment because the element of control is lacking (see, Lundberg v. State of New York, 25 N.Y.2d 467; Donitz v. Mui, 247 A.D.2d 508). The defendant Hai Soo Na, d/b/a Brian's Sport Shop (hereinafter Brian's Sports Shop), made out a prima facie case for summary judgment dismissing the complaint insofar as asserted against it. In opposition, the plaintiffs failed to establish the existence of any triable issue of fact as to whether the defendant Angel Melendez was using his automobile in furtherance of work activity of his employer, Brian's Sports Shop, or whether Brian's Sports Shop exercised any degree of control over its employee at the time of the accident (see, Swartzlander v. Forms-Rite Business Forms Print. Serv., 174 A.D.2d 971).