Virtuoso v. Pepsi-Cola Laurel Bottling Co.

Appellate Division of the Supreme Court of New York

Virtuoso v. Pepsi-Cola Laurel Bottling Co.

8 A.D.3d 986, 778 N.Y.S.2d 617, 2004 N.Y. App. Div. LEXIS 8055

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 14, 2004

StatusPublished

This text of 8 A.D.3d 986 (Virtuoso v. Pepsi-Cola Laurel Bottling Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Virtuoso v. Pepsi-Cola Laurel Bottling Co., 8 A.D.3d 986, 778 N.Y.S.2d 617, 2004 N.Y. App. Div. LEXIS 8055 (N.Y. Ct. App. 2004).

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Opinion

Appeal from an order and judgment (one paper) of the Supreme Court, Niagara County (John E Lane, J.), entered April 7, 2003. The order and judgment dismissed the complaint after a nonjury trial.

[987]*987It is hereby ordered that the order and judgment so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Plaintiffs appeal from an order and judgment dismissing their complaint following a bench trial. Plaintiffs commenced this action to recover damages for injuries sustained by plaintiff Dennis Virtuoso when the vehicle that he was driving collided with a vehicle driven by Paul G. Traver II, an employee of defendant. Contrary to plaintiffs’ contention, Supreme Court did not err in finding that Traver was not acting within the scope of his employment at the time of the accident (see generally Riviello v Waldron, 47 NY2d 297, 302-303 [1979]). “On a bench trial, the decision of the fact-finding court should not be disturbed upon appeal unless it is obvious that the court’s conclusions could not be reached under any fair interpretation of the evidence” (Claridge Gardens v Menotti, 160 AD2d 544, 544-545 [1990]). Here, the court’s decision is supported by the evidence (see Niemira v Dean, 245 AD2d 1068 [1997]). Present—Wisner, J.P., Hurlbutt, Kehoe, Martoche and Lawton, JJ.

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Appeal from an order and judgment (one paper) of the Supreme Court, Niagara County (John E Lane, J.), entered April 7, 2003. The order and judgment dismissed the complaint after a nonjury trial.

[987]*987It is hereby ordered that the order and judgment so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Plaintiffs appeal from an order and judgment dismissing their complaint following a bench trial. Plaintiffs commenced this action to recover damages for injuries sustained by plaintiff Dennis Virtuoso when the vehicle that he was driving collided with a vehicle driven by Paul G. Traver II, an employee of defendant. Contrary to plaintiffs’ contention, Supreme Court did not err in finding that Traver was not acting within the scope of his employment at the time of the accident (see generally Riviello v Waldron, 47 NY2d 297, 302-303 [1979]). “On a bench trial, the decision of the fact-finding court should not be disturbed upon appeal unless it is obvious that the court’s conclusions could not be reached under any fair interpretation of the evidence” (Claridge Gardens v Menotti, 160 AD2d 544, 544-545 [1990]). Here, the court’s decision is supported by the evidence (see Niemira v Dean, 245 AD2d 1068 [1997]). Present—Wisner, J.P., Hurlbutt, Kehoe, Martoche and Lawton, JJ.

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8 A.D.3d 986, 778 N.Y.S.2d 617, 2004 N.Y. App. Div. LEXIS 8055, Counsel Stack Legal Research, https://law.counselstack.com/opinion/virtuoso-v-pepsi-cola-laurel-bottling-co-nyappdiv-2004.

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