9839. RAMON ORTIZ, plf-res, v. EUGENE LYNCH, def-ap — Saretsky Katz Dranoff & Glass, LLP, New York (Allen L. Sheridan of counsel), for ap — Siler & Ingber, LLP, Mineola (Jed N. Kirsch of counsel), for res — Order, Supreme Court, Bronx County (Sharon A.M. Aarons, J.), entered November 5, 2012, which, to the extent appealed from, granted plaintiff’s motion for summary judgment on the issue of liability, and denied defendant’s cross motion to dismiss the complaint, unanimously affirmed, without costs.
Defendant contends that workers’ compensation benefits are plaintiff’s exclusive remedy for the injuries he sustained when he was struck by the truck defendant was driving (see Workers’ Compensation Law §29[6]). However, issues of fact exist whether the parties were “acting within the scope of their employment, as coemployees, at the time of injury” (see Macchirole v. Giamboi, 97 NY2d 147, 150 [2001]). Both were working on a film set in midtown Manhattan. However, defendant testified that he believed he was an employee of Entertainment Partners, while the Workers’ Compensation Board found that plaintiff was employed by ESPG Management Services. At the time of injury, plaintiff was engaged in keeping unauthorized vehicles from parking along the curb in the vicinity of the set, one of his duties; defendant had just arrived for work and was trying to park his truck. While, generally, traveling to and from work is not deemed to be within the scope of employment, as an employee approaches the site of his employment, “there develops a gray area where the risks of street travel merge with the risks attendant with employment” (Matter of Husted v. Seneca Steel Serv., 41 NY2d 140, 144 [1976]). Then the test of compensability is whether there is a causal relationship between the employment and the accident and whether the employee “was exposed to a particular risk not shared by the public generally” (id. at 145). Issues of fact exist whether defendant’s accident was causally related to a risk attendant with his employment rather than one shared by the public generally.
