DECISION/ORDER Upon the foregoing papers, it is ordered that defendant Janet W. Allon’s motion for summary judgment against plaintiff Elvis Bencosme is denied for the reasons set forth below.BACKGROUNDPlaintiff alleges that, on January 11, 2012, defendant’s motor vehicle was involved in an accident that injured plaintiff at his place of work, Let’s Park (hereinafter referred to as the “Parking Facility”) located at 119 East 28th Street, in the City, County, and State of New York. The accident allegedly occurred after defendant left her motor vehicle, without its keys, at the Parking Facility, in the care of its personnel. Plaintiff alleges that he and two co-workers attempted to move defendant’s vehicle when the three men lost control of the vehicle resulting in plaintiff’s injuries. Plaintiff filed suit for damages on August 14, 2012, alleging that defendant’s negligence, carelessness and recklessness caused plaintiff’s injuries. Defendant denies any fault or negligence, arguing that her actions or inactions cannot be viewed as a proximate cause of the accident. Defendant now moves to dismiss plaintiff’s complaint, pursuant to CPLR 3212, on the grounds that no triable issues of fact exist. Plaintiff opposes the motion, and defendant replies.DISCUSSIONSummary judgment is a drastic remedy and should only be granted if the moving party has sufficiently established that it is warranted as a matter of law. See Alvarez v. Prospect Hosp., 68 NY2d 320, 324 (1986). “The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case”. Winegrad v. New York University Medical Center, 64 NY2d 851, 853 (1985). Despite the sufficiency of the opposing papers, the failure to make such a showing requires denial of the motion. Id. at 853. “In determining whether summary judgment is appropriate, the motion court should draw all reasonable inferences in favor of the nonmoving party and should not pass on issues of credibility.” Garcia v. J.C. Duggan, Inc., 180 AD2d 579, 580 (1st Dep’t 1992), citing Dauman Displays, Inc. v. Masturzo, 168 AD2d 204 (1st Dep’t 1990). The court’s role is “issue-finding, rather than issue-determination”. Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 (1957) (internal quotations omitted). As such, summary judgment is rarely granted in negligence actions unless there is no conflict at all in the evidence. See Ugarriza v. Schmieder, 46 NY2d 471, 475-476 (1979).Here, the facts of this case are largely uncontested. On the date of the accident, defendant’s motor vehicle was driven to the Parking Facility where plaintiff was employed, and was parked therein. Upon leaving the Parking Facility, the driver obtained a parking ticket from a parking attendant and left the facility without leaving the keys to the vehicle. Several hours later, plaintiff started his shift for the day and was told by his supervisor that defendant’s vehicle had to be moved. Thereafter, as the Parking Facility did not have the keys, plaintiff and two of his co-workers used wheel jacks to move defendant’s vehicle. Plaintiff’s co-workers pushed the vehicle and plaintiff steered it using his hands. Plaintiff was injured when his co-workers lost control of defendant’s vehicle, which then came into contact with plaintiff.In support of her motion, defendant argues that she did not operate the vehicle at the time of the accident, she did not learn about the accident until several months thereafter, and she was not the proximate cause of plaintiff’s injuries. Defendant alleges that the proximate cause of plaintiff’s injuries is not her own failure to leave the keys to her vehicle with the Parking Facility, rather it was the parking attendants’ use and operation of the vehicle that proximately caused plaintiff’s injuries. According to defendant, she merely furnished the condition or occasion for the occurrence of the accident, but was not one of its causes. In opposition, plaintiff argues that defendant’s failure to leave the keys with the Parking Facility personnel necessitated the use of jacks to move her vehicle, and caused plaintiff’s injuries.Both parties cite to and argue the applicability of Vehicle Traffic Law (hereinafter referred to as “VTL”) §388. In opposition, plaintiff argues that defendant is liable for his injuries as she left her vehicle in the care of the Parking Facility and its employees, thus, authorizing the Parking Facility’s employees to use or operate the vehicle. In her reply, defendant argues that VTL §388(1) cannot apply herein, as the statute refers to attachment and tow situations and clearly states “vehicles” in the plural whereas only a single vehicle is involved herein. Preliminarily, the Court notes that the second sentence of VTL §388(1) relates to multiple vehicles attached or towed. However, the first sentence of such statute explicitly refers to “a vehicle” in the singular, and states that the owner of a vehicle shall be liable and responsible for injury resulting from the negligent operation or use of said vehicle. This liability extends to the owner through the use or operation by “any person using or operating the same with the permission, express or implied, of such owner.” Id. Moreover, the Appellate Division, First Department specifically held that “[u]nder this statute an owner of a vehicle is responsible for the negligence of whomever, with his consent, operates the vehicle, whether on a public highway, private highway or parking lot. Once proof of ownership has been established…a presumption, rebuttable only by substantial evidence to the contrary, attaches that the operator is using the vehicle with the owner’s consent, express or implied.” Carter v. Travelers Ins. Co., 113 AD2d 178, 180 (1st Dep’t 1985)(internal citations omitted). Here, it is undisputed that defendant owns the subject vehicle, and, thus, a presumption of defendant’s consent is established. In Carter, the Appellate Court went on to state that the owner of the vehicle gave explicit permission for the employees of the parking lot to operate his car by “turning the vehicle over to the attendant with the keys…, or implicit in his actions in parking the vehicle in the lot and leaving it there with the keys.” Id. at 180-181. “In placing his vehicle under the parking attendant’s control, knowing that the attendant could, or would, move it about the lot, he took the situation as he found it.” Id. at 181. Thus, the Parking Facility’s involvement in the accident, in and of itself, does not shield defendant from liability.Furthermore, as to defendant’s argument that she merely furnished the condition or occasion for the occurrence of the accident, “[w]hen a question of proximate cause involves an intervening act, liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant’s negligence”. Hain v. Jamison, 28 NY3d 524, 529 (2016)(internal quotations omitted). “Thus, where the risk of harm created by a defendant’s conduct corresponds to that which actually results — absent an extraordinary intervening act or significant facts weighing in favor of attenuation — it cannot be said, as a matter of law, that a defendant’s negligence merely furnished the occasion for the harm. Under such circumstances, the determination of proximate cause is best left for the factfinder.” Id. at 530. Here, defendant has failed to eliminate all material issues of fact. A triable issue of fact exists as to defendant’s conduct, as to whether she revoked her permission to plaintiff and the Parking Facility by failing to leave the keys. Here, pursuant to VTL §388, defendant may be held liable for plaintiff’s injuries if the Parking Facility and its employees had defendant’s permission to use the vehicle and negligently used or operated such vehicle. Moreover, an issue of fact exists as to whether it was foreseeable that the Parking Facility might have to move defendant’s vehicle, and that in failing to leave her keys, plaintiff and the parking attendants would have to use alternative methods of moving such vehicle which could, and did, cause injuries to plaintiff. As triable issues of fact exist, defendant’s motion for summary judgment is denied.Accordingly, it isORDERED that defendant’s motion for summary judgment is denied; and it is furtherORDERED that within 30 days of entry, plaintiff shall serve a copy of this decision/order upon defendant with notice of entry.This constitutes the Decision/Order of the Court.Dated: May 2, 2018
