Husted v. Vermilyea

Order and judgment unanimously affirmed without costs. Memorandum: Plaintiff commenced this negligence action seeking damages for injuries that he sustained in an automobile accident. Supreme Court properly granted the motion of Clinton’s Ditch Cooperative Co., Inc. (defendant) for summary judgment dismissing the complaint and cross claims against it. Defendant established as a matter of law that defendant Nelson G. Vermilyea was not its employee at the time of the accident, and plaintiff failed to raise a triable issue of fact. Thus, there is no basis for the imposition of vicarious liability under the doctrine of respondeat superior (see, Gorea v Glover, 249 AD2d 887). (Appeal from Order and Judgment of Supreme Court, Onondaga County, Elliott, J. — Summary Judgment.) Present — Pigott, Jr., P. J., Hurlbutt, Kehoe and Lawton, JJ.