New York State Court of Claims

New York State Court of Claims

Gorea v. The State of New York, #2000-005-507, Claim No. 84818, Motion No. M-59238


A union official, traveling in his union capacity, pursuant to a collective bargaining agreement wherein his time was compensated by the State and his travel expenses reimbursed by the union, was acting in furtherance of his duties to his State employer. Accordingly, the State's motion for summary judgment dismissing the claim is denied.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption herein has been corrected, sua sponte, to reflect the name of the only proper defendant herein, the State of New York.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Julian & Pertz, P.C.By: Richard Pertz, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: James L. Gelormini, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 24, 2000

Official citation:

Appellate results:
REVERSED - Fourth Dept., 9/28/01 - Claim Dismissed
See also (multicaptioned case)


The following papers, numbered 1 to 6, were read on motion by Defendant for summary judgment dismissing the claim:

Papers Numbered

Notice of Motion, Affirmation and Exhibits Annexed 1, 2

Opposing Affirmation and Exhibits Annexed 3

Reply Affirmation 4

Filed Papers: Claim, Answer 5, 6

Upon the foregoing papers, this motion is denied.

This action arises out of a fatal automobile accident that occurred at approximately 8:00 a.m. on September 19, 1991, on the New York State Thruway in the Town of Victor. The collision involved Claimant's tractor-trailer; a rental car driven by Evan Glover, an employee at the Buffalo office of the New York State Office of Vocational and Educational Services for Individuals with Disabilities (VESID), and a third vehicle. It is alleged that, without warning, Glover moved his car into the passing lane, cutting off Claimant's vehicle, causing both to cross the median and go into the opposite lane of travel, where the tractor-trailer overturned onto the third vehicle.

Glover, who was a steward and council member of the Public Employees Federation (PEF) and a member of the union's Labor/Management Committee, had rented a car on September 18 for the purpose of traveling from Buffalo to Albany in order to participate in one of the quarterly meetings between VESID and the union. Prior to each scheduled meeting with VESID's Labor/Management Committee, the union officials routinely held a pre-meeting at PEF's Albany office, and on this occasion, the pre-meeting was scheduled to start at 2:00 p.m. on September 19, with the regular meeting to take place the following day. At a deposition, Glover's widow stated that he almost always rented a car for these trips to save wear and tear on their own car, and because the cost was covered as a travel expense (see Exhibit 5 appended to the Notice of Motion, at pp 9-10). Inexplicably, when the accident occurred Glover was on the westbound portion of the Thruway -- in other words, headed in the direction of Buffalo. The reason he turned around and was traveling away from Albany, his ostensible destination, is completely unknown, and, since he died in the crash, unknowable.

When VESID employees are absent from work because they are attending legitimate union meetings and functions, they do not have to use their leave time but instead receive their regular salary for the day (see Exhibit 4 to the Notice of Motion, pp 9, 22-24 and 36-38). Glover's supervisor, Dennis P. Conroy, testified at an examination before trial that his office had received a telephone call informing him that Glover would be going to Albany for the Labor/Management Committee meeting on September 19 and 20 (see Exhibit 6, p 28). Section 4.7(c) of the 1988-1991 collective bargaining agreement between PEF and the State (Exhibit A to the Pertz affidavit) provides as follows:

Reasonable numbers of PEF designees will be granted reasonable amounts of Employee Organization Leave to participate in meetings of joint labor/management committees, the conduct of negotiations for a successful agreement, and representation of employees in the grievance procedure, with no charge to the Employee Organization Leave allowance provided in (a) above[1]or to the employees' leave credits. The use of such leave will be contingent on the submission of requests in advance, and shall be granted to the extent the resulting absences will not unreasonably interfere with an agency's operations. Reasonable and actual travel time in connection with such leave shall also be granted, subject to the same limitations and subject to a maximum of five hours each way for any meeting.

Mrs. Glover did not know who paid her husband's travel expenses, but a PEF officer, Eleanor Lisewsky, confirmed that such travel expenses were paid by PEF (see Exhibit 2, p 26), and the record includes receipts showing reimbursement by PEF for similar trips in preceding years (see Exhibit 7). Claimant asserts that at the time of the accident Glover was acting within the scope of his State employment and, consequently, that the State is responsible for Claimant's injuries under the doctrine of respondeat superior (see, e.g., Riviello v Waldron, 47 NY2d 297; Sauter v New York Tribune, 305 NY 442). In a related Supreme Court action, Claimant also sued PEF, asserting in that action that Glover had been acting as a PEF employee within the scope of his employment for the union. That action was dismissed (Gorea v Glover, 249 AD2d 887), and the Fourth Department held that PEF could not be liable because there was no evidence of an employer-employee or principal-agent relationship between PEF and Glover; that receiving reimbursement for travel expenses from the union did not make Glover an employee of PEF, and that PEF lacked control over Glover's actions in traveling to the meeting, including his decision to use a rental car. In concluding that there was no employer-employee or principal-agent relationship from which liability could arise, the Fourth Department specifically noted that, although Glover was a union officer, "pursuant to the collective bargaining agreement, the State continued to pay him while he attended union meetings."

The first question that must be answered is whether the State would be vicariously liable if Glover had been traveling to a business meeting that was unquestionably related to and required by his regular State employer. The Fourth Department has articulated the general rule to be applied in these situations as follows:

[A]n employee acts within the scope of his employment when he is acting in furtherance of the duties owed to the employer and where the employer is or could be exercising some degree of control, directly or indirectly, over the employee's activities.

(Swartzlander v Forms-Rite Business Forms & Print Serv., 174 AD2d 971, 972.)

The leading case in this regard is Lundberg v State of New York (25 NY2d 467, 471, rearg denied 26 NY2d 883), in which an engineer was temporarily assigned to a project 80 miles from his permanent office and residence, and regularly commuted to his home on the weekends. When his negligence caused an accident as he was returning to his temporary work location on a Monday morning, the Court of Appeals held that his employer could not be liable to the injured third-party for the following reasons:

a) The employee was not driving to "satisfy an obligation he owed to his employer" but, rather, solely because of his personal desire to visit his family on the weekend.

b) The State had no control over the employee's activities after the close of work on Friday to the beginning of work on Monday, during which time he was "free to do as he pleased." He could have stayed where he was or chosen, by any available means, to travel to any place he desired.

c) The State's agreement to pay travel expenses did not bestow any right of control, and imposing liability on the employer for "any tortious act he might commit while traveling between (his home) and the work site" would be unfair and beyond the doctrine of respondeat superior.

In so ruling, the Court of Appeals implicitly rejected the dissenting judge's argument that the temporary work assignment "created the necessity for his travel between Buffalo and the work site" and liability should be imposed (id., at 473, Burke, J., dissenting, citing to Matter of Marks v Gray, 251 NY 90).

A word must be said about the appropriate standard or test to apply to make a determination about scope of employment in this context. Marks was a workers' compensation case, and the test it articulated for activity "arising out of and in the course of" an individual's employment (Workers' Compensation Law §10) has been widely adopted, in this State and others:

What concerns us here is whether the risks of travel are also risks of the employment. In that view, the decisive test must be whether it is the employment or something else that has sent the traveler forth upon the journey or brought exposure to its perils.

* * *

We do not say that service to the employer must be the sole cause of the journey, but at least it must be a concurrent cause. To establish liability, the inference must be permissible that the trip would have been made though the private errand had been canceled.

In Lundberg (supra), the employee had been awarded workers' compensation benefits but the employer was not held vicariously liable for the employee's actions. To explain this, the majority of the Court of Appeals distinguished the test applied for workers' compensation -- whether activity was "related to" the worker's job -- from the test for determining whether there should be liability under respondeat superior – whether the employee was "under the control of" the employer (25 NY2d at 472). The dissenting judge disagreed, asserting that there was no such division between the two standards and that workers' compensation determinations were relevant not because their result was binding but "because they point the way to a reasonable and consistent conclusion with respect to the employer's liability in a negligence action" (id., at 473, Burke, J., dissenting).

In a more recent decision, a unanimous Court of Appeals applied the standard established in Marks (supra) to a liability situation, stating that "useful guidance may also be gleaned from analogous principles found in other related case law, though this appeal is not strictly governed by such workers' compensation principles" (Baughman v Merchants Mutual Insurance Co., 87 NY2d 589, 594). The test set forth in Marks (supra), therefore, continues to be applied in cases assessing an employer's vicarious liability to third parties (Swartzlander v Forms-Rite Business Forms & Print Serv., 174 AD2d 971, 972; Bazan v Bohne, 144 AD2d 168), although it may not be determinative in all cases (see Baguma v Walker, 195 AD2d 263, 264, Murphy, P.J., dissenting; see also Cooner v United States, 276 F2d 220, 230 n 10 [4th Cir]).

Applying the standard enunciated in Marks in the manner that it has been used in cases relating to an employer's vicarious liability, it is evident that the State would be liable to Claimant if Glover had been traveling to an Albany meeting expressly and solely for VESID. Defendant contends that, even in that situation, the State could not be liable, because, "[a]s a general rule, an employee driving to and from work is not acting in the scope of his employment" (see also Tenczar v Richmond, 172 AD2d 952, lv denied 78 NY2d 859). There are exceptions to this "coming and going" rule however, and it is well-recognized that travel to work at an other-than-usual location, when undertaken at the request or direction of the employer, qualifies as "within the scope of employment" (Lundberg v State of New York, 25 NY2d 467, supra).[2] There was no reason for Glover to be traveling to Albany except for the business-related meeting, and as stated in one case, the employment-related purpose would have been "the only reason for his being where he was when the accident occurred" (Clark v Hoff Bros. Refuse Corp., 72 AD2d 936, 937).

The fact that Glover was traveling away from, rather than toward, Albany does not require a different conclusion. Whatever his reason for turning around, he would have had no reason to be in that location -- far to the east of his home and workplace -- other than his employment-related travel (see, Clark v Hoff Bros. Refuse Corp., 72 AD2d 936, supra). Furthermore, there is absolutely no reason to assume that his reversal of direction was caused by something unusual and unanticipated, which could conceivably make his actions solely personal (such as a sudden desire to spend the day at a nearby tourist attraction), rather than one of the normal and foreseeable hazards of traveling for any purpose (such as a sudden illness that required him to return home or leaving a wallet at a service station, for example).

The sole remaining question, therefore, is whether the outcome is different because Glover was traveling to Albany not on behalf of his State employer, VESID, but rather as an officer of PEF, the union that represents VESID employees. There is surprisingly little case law dealing with situations like this in which the tortfeasor receives a regular salary from an employer but has travel expenses paid by another entity and, to the extent there could be any conflict between the two, is traveling for purpose of furthering the interests of the other entity as opposed to those of the employer. Fortunately, one of the only cases on point involves the same parties and the same occurrence as this claim. In Gorea v Glover (249 AD2d 887, supra), the Fourth Department held that PEF could not be vicariously liable for Claimant's injuries because there was "no evidence of an employer-employee or principal-agent relationship between PEF and Glover." If Glover was not acting in the scope of an employment relationship with PEF, then he can only have been acting within the scope of his State employment, for he certainly was not driving to Albany on the day in question for purely personal reasons.

Some courts have rejected the concept that union activity is of such mutual benefit to the employer and the employees that service to the union equates with service to the employer.[3] In a New York case, however, the Fourth Department held that a union president, who caused harm while acting in that capacity (injuring a truck driver while picketing during a strike), could not seek coverage from his homeowner's insurance because his actions fell within the "business pursuits" exclusion of the policy:

Plaintiff's acts as a union president and as a member of the union were directed toward improving plaintiff's compensation and work conditions as an employee of Occidental. Plaintiff's union participation and occupation as a chemical worker in a union shop are inextricably intertwined.

* * *

[In approving the strike and participating in the picketing] Plaintiff was, therefore, clearly acting within the scope of his role as union president and union member, and the sole purpose of that role was to improve the wages and working conditions of all union members at Occidental. The acts of plaintiff were, therefore, incidental to his employment and were within the business pursuits exclusion as a matter of law.

(Salimbene v Merchants Mut. Ins. Co., 217 AD2d 991, 993.)

While there is certainly no necessary correlation between the scope of an insurance policy's "business pursuits" exclusion clause and recognition of an employer-employee relationship that is sufficient for the imposition of vicarious liability on the former, the views expressed in Salimbene and the earlier ruling in Gorea v Glover both lead to the inescapable conclusion that by traveling to Albany to participate in meetings as a representative of PEF's Labor/Management committee, Glover was acting in furtherance of his duties to his State employer. In addition, because VESID continued to pay his salary during the time he was engaged in such activity and could and did set limits on the purpose for which Glover could be absent from his job and length of travel time that would be compensated, it can be said that the employer retained some ability to control Glover's actions.

Accordingly, the Defendant's motion is denied.

April 24, 2000
Rochester, New York

Judge of the Court of Claims

[1] Pursuant to subdivision (a) the State granted PEF a total of 415 days per year of Employee Organization Leave, allowing employees to attend PEF executive, committee, and delegate meetings.
[2] There is some uncertainty about how reasonably-anticipated travel while staying at an other-than-usual location at the employer's request is to be treated (compare Makoske v Lombardy, 47 AD2d 284, 288, affd 39 NY2d 773 [sightseeing while at a conference location was foreseeable] with Crawford v Wescott Steel Co., 188 AD2d 731 [returning to motel after dinner was entirely personal activity] ).
[3] In one case, where a union officer sought defense and indemnification from his employer in connection with a suit brought by union members, a California court rejected the claim and stated, "Indeed, the very notion that a union should be viewed as the agent of the employer or that the employer should somehow be involved in, or responsible for the outcome of, a dispute between union members and their union representative would , undoubtedly, shock the likes of John L. Lewis, George Meany and Walter Reuther, and would represent, from a union perspective, a major step backward in the labor movement" (Zamudio v State of California, 62 Cal App 4th 673, 681, 73 Cal Rptr 2d 79, 84.)