In Aycardi v. Robinson, 2015 Slip Op 04249 (App. Div. 1st Dept. May 19, 2015), the court addressed the not-uncommon scenario where the plaintiff seeks to hold the employer of an alleged wrongdoer liable under the principle of vicarious liability.
In this case, plaintiff pedestrian asserts that she was hit by a car being driven by defendant Robinson, a trainer for defendant Town Sports International. When the accident occurred, Robinson was driving his own car between two sports club locations where he was training clients or meeting with a manager.
The motion court denied defendant Town Sports International’s motion for summary judgment dismissing the complaint. The First Department agreed:
The motion court properly determined that TSI had not established entitlement to summary judgment dismissing the claim seeking to hold it vicariously liable for Robinson’s negligent driving. TSI did not submit evidence sufficient to establish that Robinson, who worked over 40 hours a week and received a W-2 form, was merely an independent contractor, rather than an employee (see Bynog v Cipriani Group, 1 NY3d 193, 198-199 ). Furthermore, although Robinson was driving his own car and was not required to have a car for work, his conduct occurred during the work day, while driving between work locations, which TSI reasonably could have anticipated he would do. Thus, triable issues exist as to whether Robinson was acting in furtherance of his employment and subject to TSI’s control at the time of the accident.