CORREA v. BAPTISTE

ORDERED that the order is reversed, on the law, with costs, the motion is granted, the complaint is dismissed insofar as asserted against the defendant Frederick R. Harris, Inc., and the action against the remaining defendant is severed.

Generally, "[a]n employee driving to and from work is not acting within the scope of his employment because the element of control is lacking" (Tucker v. Melendez, 278 A.D.2d 488; see Donitz v. Mui, 247 A.D.2d 508; Cicatello v. Sobierajski, 295 A.D.2d 974, 975). Contrary to the conclusion of the Supreme Court, the appellant established, as a matter of law, that it bore no liability for the fatal accident that occurred while its employee commuted to work (see Lundberg v. State of New York, 25 N.Y.2d 467; Tenczar v. Richmond, 172 A.D.2d 952). In opposition, the plaintiff failed to demonstrate the existence of a triable issue of fact (see Tucker v. Melendez, supra; Donitz v. Mui, supra; Howard v. Hilton, 244 A.D.2d 912). As such, the Supreme Court erred in denying the motion.

The plaintiff's remaining contentions are without merit.

RITTER, J.P., McGINITY, TOWNES and MASTRO, JJ., concur.