IDS Property Casualty Insurance v. Wynter

74 A.D.3d 637, 903 N.Y.S.2d 393

Opinion

Order, Supreme Court, New York County (Leslie S. Lowenstein, Special Referee), entered on or about February 26, 2010, which denied petitioner’s application to stay arbitration of respondent’s uninsured motorist claim, unanimously affirmed, without costs. .

The record establishes that, at the time of the accident respondent was a passenger in an uninsured motor vehicle. He and the driver of the vehicle, a fellow employee, were on their way to a store where the driver intended to carry out a personal errand unrelated to work. Since respondent and the driver were not acting within the scope of their employment, workers’ compensation, if it is a remedy, is not respondent’s exclusive remedy (see Workers’ Compensation Law § 29 [6]; Macchirole v Giamboi, 97 NY2d 147, 150 [2001]). Concur—Gonzalez, P.J., Andrias, Catterson, Renwick and Manzanet-Daniels, JJ.