Opinion
45-1-2008-0124.
Decided June 11, 2008.
BUCKLEY, MENDELSON, CRISCIONE QUINN, P.C., New York, Attorneys for Plaintiffs.
LAW OFFICES OF MARY AUDI BJORK, New York, Attorneys for Defendant.
On February 24, 2005, at about 6:00 p.m., defendant arrived at The Publik House restaurant, located on Route 9 in the Town of Malta, Saratoga County, to pick up a take out order and parked her vehicle in the restaurant's lot close to the entrance. Defendant, who was alone, admits that she left the car's engine running and its doors unlocked. Approximately five minutes later, while leaving the restaurant, defendant saw her vehicle being driven from the lot and heading north on Route 9. Defendant immediately called police to report the theft. As it turned out, Octavio Rivera, whom defendant observed in the parking lot when she arrived, was the thief.
Plaintiff Carlos M. Calderon, III, an on-duty New York State Trooper patrolling Interstate 87 (Northway) in Saratoga County, participated along with other police vehicles in a chase of the stolen vehicle. As the stolen vehicle approached exit 17 of the Northway, another pursuing police vehicle struck the rear of defendant's vehicle which then spun 180 degrees and collided head on with Calderon's vehicle.
In this action, plaintiff and his wife, derivatively, seek damages for injuries to his back and right shoulder. In their motion for summary judgment on the issue of defendant's liability, plaintiffs rely on the pleadings, plaintiff's deposition and defendant's deposition, as well as defendant's sworn admissions of fact under CPLR 3123, that she left her vehicle unattended with its engine running, did not lock the ignition, left the key in the ignition, and did not lock its doors. Based upon this proof, plaintiff contends that defendant is liable as a matter of law under Vehicle and Traffic Law § 1210 (a).
In her cross motion for summary judgment, defendant claims that the statute does not apply because The Publik House's parking lot is a private lot and that the theft of the vehicle was the superseding cause, relieving defendant of liability.
As on all summary judgment motions, the court's initial role is issue identification, not issue resolution, Speller v Sears, Roebuck Co., 100 NY2d 38, 44 (2003) or stated differently, the court's role is not to try issues of fact, but to determine whether there are such issues to be tried. Sommer v Federal Signal Corp., 79 NY2d 540, 554 (1992). Provided the movant establishes by competent and admissible evidence a prima facie entitlement to judgment, Connor v Tee Bar Corp., 302 AD2d 729 (3rd Dept 2002), the nonmovant, to avoid dismissal, must demonstrate the existence of material triable issues of fact by "affirmative proof to demonstrate that the matters are real and capable of being established upon a trial". Nelson v Lundy, 298 AD2d 689, 690 (3rd Dept 2002). Evidence, not speculation or supposition, is needed to demonstrate a triable issue. Vogel v Gilbo, 276 AD2d 977, 979 (3rd Dept 2000). The facts must be viewed in the light most favorable to the party opposing summary judgment, here plaintiffs on defendant's motion and defendant on plaintiffs' cross motion. Cahill v Triborough Bridge Tunnel Auth. , 4 NY3d 35 , 37 (2004); Czarnecki v Welch , 13 AD3d 952 (3rd Dept 2004).
Vehicle and Traffic Law § 1210 (a), sometimes called the "key in the ignition statute," reads in pertinent part: "No person driving or in charge of a motor vehicle shall permit it to stand unattended without first stopping the engine, locking the ignition, removing the key from the vehicle, and effectively setting the brake thereon". Defendant's first argument is that she did not violate § 1210 (a) because the lot outside The Publik House is a private lot. Prior to 1984, pursuant to Vehicle and Traffic Law § 1100, the key in the ignition statute applied only to vehicles left on highways or on private roads open to public motor vehicle traffic. Then in 1984, Vehicle and Traffic Law § 1100 was amended to provide that all provisions in the Vehicle and Traffic Law apply to "public highways, private roads open to motor vehicle traffic and any other parking lot". Vehicle and Traffic Law § 129-b defines the term "parking lot" as "[a]ny area or areas of private property near or contiguous to and provided in connection with premises having one or more stores or business establishments, and used by the public as a means of access to and egress from such stores and business establishments and for the parking of motor vehicles of customers and patrons of such stores and business establishments". The majority of the cases relied upon by defendant were decided before the 1984 amendment expanding the definition of "parking lot". For example, Zwerling v Gillis, 99 AD2d 564 (3rd Dept 1984), held that the defendant owner of a vehicle stolen from a supermarket parking lot was not liable for injuries sustained in a subsequent accident because the lot was a private lot and § 1210 (a) thus did not apply. Here, there is no question that The Publik House's lot satisfies the current, expanded definition of parking lot.
Defendant's second argument is that defendant's non-liability is dictated by the common law rule regarding superseding or intervening causes to the effect that "the owner of a stolen vehicle [is] not liable, as a matter of law, for the negligence of a thief on the basis that the use of the car by the thief intervened between the occurrence of the negligence of the owner and the unskillful driving of the car by the thief". Epstein v Metropolitan Motors, Inc., 109 AD2d 340, 343 (2nd Dept 1985). To establish defendant's liability based upon a violation of § 1210 (a), "plaintiff must establish: (1) that the statute is applicable; (2) that the statute was violated; and (3) that plaintiff was injured as a consequence of the violation (citation omitted)". Johnson v Manhattan Bronx Surface Transit Operating Auth., 71 NY2d 198, 206 (1988) [Employee of defendant left bus unattended and unlocked on a public street, which resulted in the death of two pedestrians when the bus was stolen by intoxicated thief]. In Johnson, supra at 207, the Court in explaining the rationale for § 1210 (a), stated that because "auto theft is a crime of opportunity, the Legislature enacted Vehicle and Traffic Law § 1210 (a) to serve as a deterrent to such opportunities and to protect the public from injury due to the operation of motor vehicles by unauthorized persons (Report of Joint Legis Comm on Motor Vehicle Problems, 1954 NY Legis Do No. 35, at 106-107)". Although the facts in Johnson are distinguishable from those of this case, the point is the same: "the defendant provided the opportunity for the theft in violation of the statute and started the chain of events" which resulted in injury to the plaintiffs. Johnson v Manhattan Bronx Surface Transit Operating Auth., supra.
Defendant's liability to plaintiffs is determined as a matter of law because the three required elements identified in Johnson v Manhattan Bronx Surface Transit Operating Auth., supra, namely 1) The Publik House's parking lot falls within the statute, 2) defendant violated § 1210 (a) it by leaving her car's engine running and unlocked, and 3) plaintiff was injured when defendant's stolen vehicle collided with his vehicle, have been conclusively proved.
Plaintiffs' motion is granted and defendant's cross motion is denied, without costs.
This memorandum shall constitute both the decision and the order of the court. All papers, including this decision and order, are being returned to plaintiffs' counsel. The signing of this decision and order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of that section relating to filing, entry and notice of entry.
So Ordered.