Evans v. Norecaj

• Court: New York Supreme Court — Appellate Division
• Citation: Evans v. Norecaj, 172 A.D.3d 576, 102 N.Y.S.3d 15 (N.Y. App. Div. 2019)
• Decision Date: 23 May 2019
• Docket Number: 83873/14,9018,Index 301983/13
• Parties: Freddie EVANS, Plaintiff–Respondent, v. Robert NORECAJ, Defendant, Mark Gjurashaj, Defendant–Respondent, Dolphin Restaurant Bar Lounge, et al., Defendants–Appellants. Dolphin Restaurant Bar Lounge, et al., Third–Party Plaintiffs–Appellants, v. APV Valet Parking Corp., Third–Party Defendant–Respondent, Robert Norecaj, Defendant.

172 A.D.3d 576

102 N.Y.S.3d 15

Freddie EVANS, Plaintiff–Respondent,

v.Robert NORECAJ, Defendant,Mark Gjurashaj, Defendant–Respondent,Dolphin Restaurant Bar Lounge, et al., Defendants–Appellants.

Dolphin Restaurant Bar Lounge, et al., Third–Party Plaintiffs–Appellants,

v.APV Valet Parking Corp., Third–Party Defendant–Respondent,Robert Norecaj, Defendant.

9018

Index 301983/13

83873/14

Supreme Court, Appellate Division, First Department, New York.

ENTERED: MAY 23, 2019

Burke, Conway & Dillon, White Plains (Jayne F. Monahan of counsel), for appellants.

The Altman Law Firm, PLLC, Woodmere (Michael T. Altman of counsel), for Freddie Evans, respondent.

Mead, Hecht, Conklin & Gallagher, LLP, White Plains (Sara Luca Salvi of counsel), for Mark Gjurashaj, respondent.

Lester Schwab Katz & Dwyer, LLP, New York (Paul M. Tarr of counsel), for APV Valet Parking Corp., respondent.

Richter, J.P., Manzanet–Daniels, Kahn, Gesmer, Oing, JJ.

Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered on or about March 29, 2018, which, to the extent appealed from, denied the motion of defendants Dolphin Restaurant Bar Lounge and WSH Group 1 LLC (collectively Dolphin) for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

Dolphin failed to demonstrate a prima facie entitlement to judgment as a matter of law. The parties' deposition testimony raised material issues of fact as to whether, and to what extent, Dolphin can be held liable for the negligence, if any, of its valet parking service, third-party defendant APV Valet Parking Corporation (APV).

A restaurant providing valet parking services can be held liable for the negligence of the service whose attendants are alleged to have caused an accident to a third party. This is the case even where the service is an independent contractor with which the restaurant has contracted (see Spadaro v. Parking Sys. Plus, Inc., 113 A.D.3d 833, 979 N.Y.S.2d 627 [2d Dept. 2014] ; see also Berger v. Rokeach, 58 Misc.3d 827, 63 N.Y.S.3d 835 [Sup. Ct., Kings County 2017] [supermarket had duty to exercise reasonable care to have taken reasonable measures to control the foreseeable conduct of parties on the property with whom they contracted, i.e., the parking attendants, to prevent them from either intentionally harming or creating an unreasonable risk of harm to others] ).

This duty arises when there is an ability and opportunity to control the conduct of the restaurant's contractors and an awareness of the need to do so. Thus, Dolphin cannot assert that it signed a contract with the valet parking service and then "covered its eyes with a blindfold"; rather, Dolphin was required to select a company "with, at the minimum, both appropriate insurance and competent drivers" ( Berger v. Rokeach, 58 Misc.3d at 842, 63 N.Y.S.3d 835 ). Defendant restaurant was able to decline to enter into any contract for valet services it felt insufficient, and therefore in the best position to protect against the risk of harm.

Dolphin similarly failed to demonstrate that it did not create an unreasonable risk of harm to others or that APV entirely displaced its duty to maintain the valet parking area safely (see Espinal v. Melville Snow Contrs., Inc., 98 N.Y.2d 136, 140, 746 N.Y.S.2d 120, 773 N.E.2d 485 [2002] ). Indeed, the evidence showed, inter alia, that the restaurant and the valet service communicated on a daily basis to determine proper staffing. The...