Majority
p. 638Joyce Ripley, as Administratrix of the Estate of James E. Pettus, Deceased, et al., Respondents, v Wayne Pettus, Also known as Jerry W. Pettus, Appellant.
Order, Supreme Court, Bronx County, entered on August 9, 1974, denying defendant’s motion to vacate the service of the summons and complaint, unanimously reversed, on the law, the motion granted, and the service of the summons and complaint vacated. Appellant shall recover of respondents $40 costs and disbursements of this appeal. The defendant, Wayne Pettus (Pettus), is not a resident of New York State. He was, at the time of the occurrence sued upon, an employee of Atlantic Moving & Storage Company (Atlantic), a foreign corporation. The accident giving rise to this action occurred when one David Parton (Parton) was driving the truck of Atlantic. Construing the facts most favorably to the
p. 639
plaintiff, Pettus and Parten were at best coemployees and we can envision no principal-agent relationship between them. Under these circumstances, there is no authority for service of a summons and complaint upon Pettus pursuant to section 253 of the Vehicle and Traffic Law (cf. De Concilius v Fry Roofing Co., 34 Misc 2d 430 ). Concur—Stevens, P. J., Markewich, Tilzer, Lane and Yesawich, JJ.
Cases cited
- De Concilius v. Lloyd A. Fry Roofing Co. 34 Misc 2d 430 p. 639