Opinion
876 CA 19–00345
10-04-2019
Timothy J. FARNHAM, Plaintiff–Respondent, v. MIC WHOLESALE LTD, Shuwen Zhang, Defendants, and Manheim Auto Auction, Defendant–Appellant.
CRUSER, MITCHELL, NOVITZ, SANCHEZ, GASTON & ZIMET, LLP, FARMINGDALE (GARY E. DVOSKIN OF COUNSEL), FOR DEFENDANT–APPELLANT. DOLCE PANEPINTO, P.C., BUFFALO (EDWARD L. SMITH, III, OF COUNSEL), FOR PLAINTIFF–RESPONDENT.
CRUSER, MITCHELL, NOVITZ, SANCHEZ, GASTON & ZIMET, LLP, FARMINGDALE (GARY E. DVOSKIN OF COUNSEL), FOR DEFENDANT–APPELLANT.
DOLCE PANEPINTO, P.C., BUFFALO (EDWARD L. SMITH, III, OF COUNSEL), FOR PLAINTIFF–RESPONDENT.
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, DEJOSEPH, AND NEMOYER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs. Memorandum: Plaintiff commenced this action seeking damages for injuries he sustained at an automobile auction facility owned and operated by Manheim Auto Auction (defendant) in Manheim, Pennsylvania. Defendant's property consisted of a large parking lot, where thousands of vehicles were parked, as well as several buildings, including an "auction building." During the auction process, each vehicle for sale was assigned a parking spot in the lot and, when it was time to auction off the vehicle, a driver drove it down a marked traffic lane in the parking lot and into the auction building. According to plaintiff, who regularly attended defendant's auctions, he was standing at the end of one of the lanes in a clearly marked "safety area" waiting for a particular vehicle to be auctioned when he was struck by a vehicle that was owned by defendant MIC Wholesale LTD (MIC) and operated by MIC's employee, defendant Shuwen Zhang. Plaintiff settled the action against MIC and Zhang, and the case proceeded against defendant. Defendant appeals from an order denying its motion for summary judgment dismissing the complaint against it, and we affirm.
Contrary to defendant's contention, New York law controls the resolution of its motion and this appeal. "[B]ecause New York is the forum state, i.e., the action was commenced here, ‘New York's choice-of-law principles govern the outcome of this matter’ " ( Burnett v. Columbus McKinnon Corp., 69 A.D.3d 58, 60, 887 N.Y.S.2d 405 [4th Dept. 2009] ). "The first step in any case presenting a potential choice of law issue is to determine whether there is an actual conflict between the laws of the jurisdictions involved" ( Matter of Allstate Ins. Co. [Stolarz—New Jersey Mfrs. Ins. Co.], 81 N.Y.2d 219, 223, 597 N.Y.S.2d 904, 613 N.E.2d 936 [1993] ). Here, defendant failed to establish the existence of any conflict between New York and Pennsylvania law with respect to the issues raised in the motion, and therefore we need not engage in any choice of law analysis (see Portanova v. Trump Taj Mahal Assoc., 270 A.D.2d 757, 759–760, 704 N.Y.S.2d 380 [3d Dept. 2000], lv denied 95 N.Y.2d 765, 716 N.Y.S.2d 39, 739 N.E.2d 295 [2000] ; McCarthy v. Coldway Food Express Co., 90 A.D.2d 459, 460–461, 454 N.Y.S.2d 837 [1st Dept. 1982] ).
Regarding the merits, we reject defendant's contention that it met its initial burden of establishing as a matter of law that it was not negligent (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ). It is well established that, "[b]ecause a finding of negligence must be based on the breach of a duty, a threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party" ( Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 138, 746 N.Y.S.2d 120, 773 N.E.2d 485 [2002] ). "It is beyond dispute that landowners and business proprietors have a duty to maintain their properties in [a] reasonably safe condition" ( Di Ponzio v. Riordan, 89 N.Y.2d 578, 582, 657 N.Y.S.2d 377, 679 N.E.2d 616 [1997] ). Here, although defendant submitted an affidavit of a professional engineer who opined that the "design and traffic controls utilized in the subject parking lot in the vicinity of the incident were appropriate and consistent with the state of the practice," it is well settled that "compliance with industry standards ... does not establish as a matter of law that such defendant was not negligent" ( Hayes v. Texas Roadhouse Holdings, LLC, 100 A.D.3d 1532, 1532–1533, 954 N.Y.S.2d 348 [4th Dept. 2012] ; see Miner v. Long Is. Light. Co., 40 N.Y.2d 372, 380–381, 386 N.Y.S.2d 842, 353 N.E.2d 805 [1976] ; Belsinger v. M & M Bowling & Trophy Supplies, Inc., 108 A.D.3d 1041, 1042, 969 N.Y.S.2d 644 [4th Dept. 2013] ). Furthermore, while the expert indicated in his affidavit that he is a senior project engineer, he provided no "further information ... to establish any specialized knowledge, experience, training, or education with respect to the relevant subject matter" in this case, i.e., parking/auction lot design ( Paul v. Cooper, 45 A.D.3d 1485, 1487, 845 N.Y.S.2d 905 [4th Dept. 2007] [internal quotation marks omitted]; see Stever v. HSBC Bank USA, N.A., 82 A.D.3d 1680, 1681, 920 N.Y.S.2d 510 [4th Dept. 2011], lv denied 17 N.Y.3d 705, 2011 WL 2535162 [2011] ). To the extent that defendant claims there was a lack of actual or constructive notice of the alleged defective design of the premises, we conclude that defendant failed to establish that it did not create the condition (see Hayes, 100 A.D.3d at 1534, 954 N.Y.S.2d 348 ). "Actual or constructive notice of a defective condition is not required where defendant[ ] created the dangerous condition" ( id. ).
We similarly reject defendant's contention that the actions of Zhang were the sole proximate cause of the accident. "Typically, the question of whether a particular act of negligence is a substantial cause of the plaintiff's injuries is one to be made by the factfinder, as such a determination turns upon questions of foreseeability and what is foreseeable and what is normal may be the subject of varying inferences" ( Hain v. Jamison, 28 N.Y.3d 524, 529, 46 N.Y.S.3d 502, 68 N.E.3d 1233 [2016] [internal quotation marks omitted]; see Paul, 45 A.D.3d at 1487, 845 N.Y.S.2d 905 ). Additionally, "it is well settled that there may be more than one proximate cause of the accident" ( Przesiek v. State of New York, 118 A.D.3d 1326, 1327, 988 N.Y.S.2d 328 [4th Dept. 2014] ). Based on defendant's submissions, we conclude that there are questions of fact whether the actions of Zhang were a natural and foreseeable consequence of the circumstances created by defendant, i.e., allowing non-employees to drive in the subject area and the overall design and operation of the auction lot (see Paul, 45 A.D.3d at 1487, 845 N.Y.S.2d 905 ; see also Fuller v. Marcello, 17 A.D.3d 1017, 1018–1019, 794 N.Y.S.2d 218 [4th Dept. 2005] ; Phelan v. Ferello, 207 A.D.2d 874, 875, 616 N.Y.S.2d 655 [2d Dept. 1994] ; see generally Hain, 28 N.Y.3d at 533–534, 68 N.E.3d 1233 ). Contrary to defendant's final contention, it was not entitled to summary judgment dismissing the complaint against it on the ground of assumption of the risk. As stated by the Court of Appeals, the "application of assumption of the risk should be limited to cases appropriate for absolution of duty, such as personal injury claims arising from sporting events, sponsored athletic and recreative activities, or athletic and recreational pursuits that take place at designated venues" ( Custodi v. Town of Amherst, 20 N.Y.3d 83, 89, 957 N.Y.S.2d 268, 980 N.E.2d 933 [2012] ). Here, plaintiff was not engaging in any requisite activity or event sponsored or supported by defendant at a designated venue (see id. ). Rather, plaintiff was simply standing in a safety area at defendant's automobile auction facility when he was struck by a motor vehicle, and therefore the doctrine of assumption of the risk does not apply (see generally Knight v. Holland, 148 A.D.3d 1726, 1728, 51 N.Y.S.3d 749 [4th Dept. 2017] ).