At a minimum, the remoteness in time between the criminal act and the injury is dispositive to the question of legal cause in this case. See Devellis v. Lucci, 697 N.Y.S.2d 337, 339, 266 A.D.2d 180 (App.Div. 1999) ("passage of 24 days between the theft of the vehicle and the injury-producing event vitiated any proximate cause between the purported negligence and the accident as a matter of law"). Even if it were negligent for Budget to leave the keys inside of its minivan, "the responsibility for such negligence must terminate at some time in the future."
The appellant established, prima facie, his entitlement to judgment as a matter of law by presenting evidence that his vehicle had been stolen about three days prior to the subject accident and was being operated without his permission or consent at the time of the accident ( see Devellis v. Lucci, 266 A.D.2d 180, 697 N.Y.S.2d 337; Delfino v. Ranieri, 131 Misc.2d 600, 501 N.Y.S.2d 248). In opposition, the respondents failed to raise a triable issue of fact.
The appellant moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against him, and the Supreme Court denied the motion. The appellant established, prima facie, his entitlement to judgment as a matter of law by presenting evidence that his vehicle had been stolen about three days prior to the subject accident and was being operated without his permission or consent at the time of the accident ( see Devellis v. Lucci, 266 A.D.2d 180, 697 N.Y.S.2d 337; Delfino v. Ranieri, 131 Misc.2d 600, 501 N.Y.S.2d 248). In opposition, the respondents failed to raise a triable issue of fact.
The appellant established, prima facie, his entitlement to judgment as a matter of law by presenting evidence that his vehicle had been stolen about three days prior to the subject accident and was being operated without his permission or consent at the time of the accident ( see Devellis v. Lucci, 266 A.D.2d 180, 697 N.Y.S.2d 337; Delfino v. Ranieri, 131 Misc.2d 600, 501 N.Y.S.2d 248). In opposition, the respondents failed to raise a triable issue of fact.
While this appeal could be dismissed on the basis that Merritt's omission of those papers inhibits this Court's ability to render an informed decision on the merits of the appeal (see CPLR 5528 ; Beizer v. Swedish, 125 A.D.3d 703, 703, 4 N.Y.S.3d 58 ), in this case, the original papers are sufficient to permit review of the merits (seeLiriano v. Asillo, 207 A.D.3d 534, 535, 169 N.Y.S.3d 826 ). Nevertheless, we have not considered that portion of Merritt's appendix containing a document post-dating the clerk's judgment appealed from as that document is matter dehors the record (seeDevellis v. Lucci, 266 A.D.2d 180, 181, 697 N.Y.S.2d 337 ). "Where, as here, a case is tried without a jury, this Court's authority is as broad as that of the trial court, and this Court may render the judgment it finds warranted by the facts, taking into account in a close case the fact that the trial judge had the advantage of seeing the witnesses and hearing the testimony" ( Mil–Spec Indus. Corp. v. Expansion Indus., LLC, 201 A.D.3d 651, 653, 159 N.Y.S.3d 494 [internal quotation marks omitted]).
While the law of the case doctrine and, thus, the order of June 30, 2009, is not binding on this court (Martin v. City of Cohoes, 37 N.Y.2d 162, 165 [1975];People v. Gonzalez, 266 A.D.2d 562, 563 [1999] ), under the circumstances presented, we decline to exercise our discretion to review, on the merits ( see Haibi v. Haibi, 171 A.D.2d 842, 843 [1991];Post v. Post, 141 A.D.2d 518 [1988];Chan v. Sheppard, 2002 N.Y. Slip Op 40521[U] [App Term, 2d & 11th Jud Dists 2002] ), the issue of whether defendant demonstrated a meritorious defense in the instant motion papers. We note that we do not consider facts or issues raised by either of the parties which are dehors the record or are raised for the first time on appeal ( see Terranova v. Waheed Brokerage, Inc., 78 AD3d 1040 [2010];Devellis v. Lucci, 266 A.D.2d 180 [1999];Chimarios v. Duhl, 152 A.D.2d 508 [1989] ). Accordingly, the order is affirmed.
Accordingly, the judgment, insofar as appealed from, is reversed, judgment is awarded to plaintiff on the issue of Allstate's liability, and the matter is remitted to the City Court for a new trial limited to the issue of damages to be awarded against Allstate. We note that we do not consider facts or issues raised by plaintiff which are dehors the record or are raised for the first time on appeal ( see Terranova v. Waheed Brokerage, Inc., 78 AD3d 1040 [2010];Devellis v. Lucci, 266 A.D.2d 180 [1999];Chimarios v. Duhl, 152 A.D.2d 508 [1989] ). NICOLAI, P.J., LaCAVA and IANNACCI, JJ., concur.
After a nonjury trial, the District Court awarded plaintiffs the principal sum of $3,800. Appellate review of a small claims judgment “is limited to a determination of whether substantial justice has been done between the parties according to the rules and principles of substantive law” (UDCA 1804, 1807; see Devellis v. Lucci, 266 A.D.2d 180, 181 [1999];Heatherwood House at Ronkonkoma, LLC v. Kuehn, 21 Misc.3d 138[A], 2008 N.Y. Slip Op 52298[U] [App Term, 9th & 10th Jud Dists 2008] ). As a general rule, a court's determination following a nonjury trial “should not be disturbed unless it is obvious that the court's conclusions could not be reached under any fair interpretation of the evidence, especially when the findings of fact rest in large measure on considerations relating to the credibility of witnesses” (Claridge Gardens v. Menotti, 160 A.D.2d 544, 544–545 [1990];see also Perez v. Garcia, 304 A.D.2d 544 [2003] ).
Plaintiff offered no excuse in the Civil Court for her failure to comply with the order. The evidence offered by plaintiff on appeal to show why she did not comply is dehors the record and will not be considered ( see Devellis v. Lucci, 266 A.D.2d 180 [1999];Chimarios v. Duhl, 152 A.D.2d 508 [1989] ). Moreover, plaintiff failed to demonstrate a meritorious cause of action.
Indeed, under the majority's analysis, no period of time, be it 5, 10 or 15 years, would suffice to attenuate the State's negligence from a criminal act committed by Joseph. To adopt this view would, for all intents and purposes, make the State an insurer of Joseph, answerable in perpetuity for his criminal and tortious conduct, thereby placing no manageable limit upon the liability flowing from the State's alleged negligent conduct in allowing Joseph to elope, in contravention of the principles set forth in Derdiarian ( 51 NY2d at 314; see also Devellis v Lucci, 266 AD2d 180, 181 ["One who inadvertently facilitates the theft of a vehicle by neglecting to comply with the statute is not answerable in perpetuity for the criminal and tortious conduct of others who may come into possession of the stolen vehicle in the distant future"]). [Prior Case History: 23 Misc 3d 1135(A), 2009 NY Slip Op 51103(U).]