Opinion
May 29, 2001.
Order, Supreme Court, Bronx County (Anne Targum, J.), entered on or about October 19, 2000, which denied the motion of defendant Kolcaj Realty Corp. for summary judgment dismissing the complaint and all cross-claims against it, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment in favor of defendant-appellant dismissing the complaint and cross-claims as against it.
Steven B. Dorfman, for plaintiff-respondent.
Brian A. Kalman, for defendant-appellant.
Before: Williams, J.P., Wallach, Lerner, Rubin, Friedman, JJ.
While driving his car towards the exit of a parking lot, defendant Lawkinder Singh depressed the accelerator instead of the brake, striking plaintiff Baljit Singh and pinning him against a parked vehicle owned by defendant Sepulveda. (Plaintiff Baljit Singh and defendant Lawkinder Singh are unrelated.) Plaintiff predicates liability against appellant Kolcaj Realty Corp. on the theory that the parking space occupied by the Sepulveda vehicle exceeded the capacity of the parking lot specified in the certificate of occupancy, and that appellant was therefore negligent in creating a hazard that was a substantial factor in causing his injuries. Plaintiff's position is without merit.
It is uncontested that the Sepulveda vehicle was merely a stationary object into which plaintiff was fortuitously propelled as the result of defendant Singh's loss of control of his automobile (see, Margolin v. Friedman, 43 N.Y.2d 982). The violation of an ordinance as the result of the failure to abide by the certificate of occupancy "does not establish negligence as a matter of law" (Shinshine Corp. v. Kinney System, 173 A.D.2d 293, citing Long v. Forest-Fehlhaber, 55 N.Y.2d 154, 160). Even if the creation of an extra parking space by appellant Kolcaj were assumed to constitute negligence, it is not a proximate cause of plaintiff's injury so as to subject appellant to liability. Appellant's presumed negligence falls into that category of "independent intervening acts which operate upon but do not flow from the original negligence" and, therefore, constitutes an unforeseeable consequence of the original negligent act as a matter of law (Derdiarian v. Felix Contr. Co., 51 N.Y.2d 308, 315, rearg denied 52 N.Y.2d 784, 829; see also, Murray v. New York City Hous. Auth., 269 A.D.2d 288, 289-290). That a stationary object might constitute a hazard does not require the conclusion that it is an immediate contributing cause of injury, even where no act of a third-party intervenes (see, Howard v. Poseidon Pools, 72 N.Y.2d 972, 974 [shallow pool bottom]).
The opinion given by plaintiff's expert "with a reasonable degree of engineering certainty" that the violation of the certificate of occupancy materially contributed to plaintiff's injuries is of no consequence. Whether the creation of an unauthorized parking space was a proximate cause of plaintiff's injuries is the ultimate issue to be decided in this case, and whether the asserted negligence is sufficiently remote from the injury alleged to have resulted is, in any event, a question of law for the court (Ventricelli v. Kinney Sys. Rent A Car, 45 N.Y.2d 950, 952;Palsgraf v. Long Is. R. R. Co., 248 N.Y. 339, 345; cf., Betancourt v. Manhattan Ford Lincoln Mercury, 195 A.D.2d 246, appeal dismissed 84 N.Y.2d 932). Even with respect to questions of fact, "the opinions of experts, which intrude on the province of the jury to draw inferences and conclusions are both unnecessary and improper" (Kulak v. Nationwide Mut. Ins. Co., 40 N.Y.2d 140, 148 [citing Meiselman v. Crown Hgts. Hosp., 285 N.Y. 389, 396; People v. Creasy, 236 N.Y. 205, 222-223]; see also,Nevins v. Great Atl. Pac. Tea Co., 164 A.D.2d 807, 808-809; Franco v. Muro, 224 A.D.2d 579). Where the offered proof intrudes upon the exclusive prerogative of the court to render a ruling on a legal issue, the attempt by a plaintiff to arrogate to himself a judicial function under the guise of expert testimony will be rejected (Sawh v. Schoen, 215 A.D.2d 291, 293-294; see also, Lipton v. Kaye, 214 A.D.2d 319, 322-323).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.