Delfino by Delfino v. Ranieri

• Decision Date: 17 March 1986
• Citation: 501 N.Y.S.2d 248,131 Misc.2d 600
• Parties: Lisa DELFINO, an infant, by her parent and Natural Guardian, Agnes DELFINO, and Agnes Delfino, Individually, Plaintiffs, v. Sandro RANIERI and Max Rosenberg, Defendants.
• Court: New York Supreme Court

Page 248

501 N.Y.S.2d 248

131 Misc.2d 600

Lisa DELFINO, an infant, by her parent and Natural Guardian, Agnes DELFINO, and Agnes Delfino, Individually, Plaintiffs, v. Sandro RANIERI and Max Rosenberg, Defendants.

Supreme Court, Special Term,

Kings County, Part VIII.

March 17, 1986.

Lipsig, Sullivan & Liapakis, P.C. (Howard M. Goldstein, New York City, of counsel), for plaintiffs.

Hogan, Jones & Parisi, P.C., New York City, for defendant Ranieri.

William J. Cariello (Paul Aronow, Garden City, of counsel), for defendant Rosenberg.

NICHOLAS A. CLEMENTE, Justice.

On September 5, 1983, Lisa Delfino was injured when a jeep in which she was a passenger was involved in an accident at the intersection of Ninth Avenue and 65th Street in Brooklyn. The jeep was operated by defendant Sandro Ranieri and owned by defendant Max Rosenberg.

About one month later, Lisa, an infant, commenced this action by her mother against Sandro Ranieri and Max Rosenberg. The complaint alleges that the jeep was driven by Ranieri with the consent of Rosenberg and that because of defendants' negligence, plaintiff suffered damages. A second derivative cause of action is asserted on behalf of Lisa's mother.

Thereafter, defendant Rosenberg interposed an answer dated January 18, 1984 alleging as an affirmative defense that the jeep was not in his control at the time of the accident since it had been stolen prior thereto on September 3, 1983.

Examinations before trial were held. Lisa at her examination before trial testified that she saw a key in the ignition while she was in the jeep (with Ranieri). Ranieri, at his examination before trial, testified that the accident occurred at 11:50 P.M. on September 5, 1983; that he had first entered the jeep earlier that day at 5:00 A.M.; that he had no keys to the jeep; that the ignition where the key would go was not in place and that he had thereafter pled guilty to attempted unauthorized use of a vehicle.

Rosenberg now moves for an order pursuant to CPLR 3212 granting him summary judgment against plaintiffs and his co-defendant Ranieri. In support of the motion, it is contended that the vehicle involved in the accident was reported stolen two (2) days before the accident; that under section 388(1) of the Vehicle and Traffic Law ^* an owner is liable for an operator's negligence only if the use by the operator was permissive; and that Ranieri's plea of guilty to unauthorized use of movant's jeep established the lack of permission. Thus, Rosenberg maintains that there are no issues of fact since there is no reasonable basis to hold him liable for Ranieri's actions and accordingly, summary judgment should be awarded to him.

Plaintiffs, in opposing the motion, point to testimony elicited at the examinations before trial that shows that Rosenberg had loaned the jeep to his brother prior to its theft and that his brother may have left the key in the vehicle before it was stolen. Plaintiffs posit that a failure to properly secure the vehicle by Rosenberg's brother would constitute a violation of the key removal requirement of section 1210 of the Vehicle and Traffic Law. They further argue that Rosenberg has not met his burden of proof on the issue of lack of permissive use and that summary judgment should be denied. While not clearly stated, plaintiffs seem to argue that if Rosenberg's brother left a key in the jeep and the jeep was stolen, its owner would be liable for the negligence of the person driving the stolen vehicle two (2) days after the theft.

As indicated, plaintiffs in adopting this approach rely upon subd. (a) of section 1210 of the Vehicle and Traffic Law which provides:

"(a) 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 and, when standing upon any grade, turning the front wheels to the curb or side of the highway, provided, however, the provision for removing the key from the vehicle shall not require the removal of keys hidden from sight about the vehicle for convenience or emergency."

At the outset it must be stated, that ordinarily Rosenberg would be absolved of the responsibility vicariously imposed by section 388 of the Vehicle and Traffic Law.

In Albouyeh v. County of Suffolk, 96 A.D.2d 543, 544, 465 N.Y.S.2d 50 affirmed 62 N.Y.2d 681, 476 N.Y.S.2d 522, 465 N.E.2d 29, the Appellate Division stated:

"Subdivision 1 of section 388 of the Vehicle and Traffic Law imputes to the owner of a motor vehicle the negligence of one who uses or operates it with his permission. That section gives rise to a presumption that the vehicle is being operated with the owner's consent (see Leotta v Plessinger, 8 NY2d 449, 461 [209 N.Y.S.2d 304, 171 N.E.2d 454]; Aetna Cas. & Sur. Co. v Brice, 72 AD2d 927, , affd for reasons stated in mem at App Div 50 NY2d 958). The presumption of consent has been characterized as 'very strong' and continues until there is substantial evidence to the contrary (see Leotta v Plessinger, supra; Aetna Cas. & Sur. Co. v Brice, supra; Blunt v Zinni, 32 AD2d 882, 883 ). In the instant case ... [where] the automobile was stolen, there is no factual issue to be resolved with respect to whether [the thief] used the vehicle with the consent of the ... owner (see General Acc. Group v. Noonan, 66 Misc.2d 528 ; cf. Santorio v Diaz, 86 AD2d 926 ; Phoenix v Bolton, 59 AD2d 464, 467 )."

The exact same analysis is, however, not appropriate at bar. While there is no question that Ranieri came into possession of the car as a result of its theft and thus, it may be determined, as a matter of law, that the presumption of section 388 is overcome as far as the relationship between the defendants is concerned, nevertheless there may be liability based upon the possible statutory violation by Rosenberg's brother. In effect, a violation of section 1210 of the Vehicle and Traffic Law by the brother may make Rosenberg responsible to the plaintiffs pursuant to section 388 of the Vehicle and Traffic Law.

The motion for summary judgment thus resolves itself into (1) whether there is an issue of fact concerning plaintiffs' apparent claim that Rosenberg or someone to whom he lent the jeep left a key in it prior to its theft; and, if so, (2) whether such issue requires the denial of the motion.

It is quite evident that there is an issue of fact herein, despite the agreement on the issue by defendants, who have adverse interests. Rosenberg presented an affidavit from his brother Frank (who was the last one to have possession of the jeep prior to its theft) unequivocally denying that keys were left in the jeep. Ranieri's testimony at his examination before trial also indicates that no keys were found in the jeep. Standing against this evidence is Lisa's testimony at her examination before trial that she saw a key in the ignition. While plaintiffs' proposition as to the key seems conveniently tailored to hold Rosenberg in, they have presented a question of fact which necessitates denial of summary judgment if section 1210 applies (cf Shea v. Johnson, 101 A.D.2d 1018, 476 N.Y.S.2d 706).

At common law, the owner of a stolen vehicle was not liable for the negligence of the thief because the use of the vehicle by the thief intervened between the occurrence of any negligence by the owner and the thief's unskilled driving (Epstein v. Mediterranean Motors, 109 A.D.2d 340, 343, 491 N.Y.S.2d 391; Zwerdling v. Gillis, 99 A.D.2d 564, 470 N.Y.S.2d 952; Albouyeh v. County of Suffolk, supra; Beck v. Coby, 58 A.D.2d 565, 396 N.Y.S.2d 218). Section 1210 of the Vehicle and Traffic Law was adopted to invoke responsibility under certain circumstances despite the negligence being by a car thief. In explaining section 1210, Guaspari v. Gorsky, 36 A.D.2d 225, 228, 319 N.Y.S.2d 708 stated:

"The statute changed the prior case law and it is now clear that the intervention of an unauthorized person no longer operates to break the chain of causation. Its purpose is two-fold: (1) as a public safety measure designed to protect life and property of others by conferring a cause of action upon anyone damaged as a consequence of its violation and (2) as a deterrent to theft. (Matter of Smith [MV AIC] 57 Misc.2d 576, , mod. 34 AD2d 629 ; Padro v Knobloch, 28 Misc.2d 898 ; Kass v Schneiderman, 21 Misc.2d 518 ). It appears that a substantial number of States which have similar statutes and which have passed on this question have taken the position that the intervention of the third party does not operate to break the chain of proximate causation. (Ann. 51 ALR 2d 639-643)."

So it is that the courts have come to recognize that the victim of a vehicle theft may be liable under section 1210 to the victim of the thief's...