Fiocco v. Doerflinger
| Decision Date | 02 September 1980 |
| Citation | 431 N.Y.S.2d 795,106 Misc.2d 381 |
| Parties | Cosmo FIOCCO, Plaintiff, v. Edith DOERFLINGER, Defendant. |
| Court | New York District Court |
This is a motion by the defendant in the Small Claims Part for an order dismissing the complaint in the within action and directing that summary judgment be entered in favor of the defendant upon the ground that there are no triable issues of fact and the cause of action alleged in the complaint has no merit. The Small Claims Part of the court is not the proper jurisdiction for pre-trial motion practice, and the motion should be denied.
Furthermore, the defendant asserts that a claim for property damage allegedly sustained by the plaintiff as a result of the motor vehicle accident on December 31, 1979 should be dismissed as a matter of law.
Defendant alleges that at the time plaintiff's automobile was struck by the defendant's automobile the defendant's automobile was being operated by an unknown thief; that the defendant's automobile was stolen while it was parked on the defendant's driveway, and for that reason, the defendant should not be held liable for the negligence of the thief who was involved in the collision with plaintiff's automobile.
Defendant acknowledges that while the automobile was in her driveway at approximately 6:00 o'clock A.M. on December 31, 1979, she had started her car in order to give her vehicle sufficient time to warm up. Defendant then left her car unattended with the motor running, when an unknown person entered her vehicle and drove it away.
Counsel cites in support of his application a decision by the Honorable Bertram Harnett, Supreme Court Justice; General Accident Group v. Noonan, 66 Misc.2d 528, 321 N.Y.S.2d 483, wherein a similar situation is described and the owner of the vehicle had left the vehicle's key in the ignition while the auto was parked in his driveway. Defendant cites other cases as well.
This Court, after reviewing the cases cited, as well as other cases, see Guaspari v. Gorsky, 36 A.D.2d 225, 319 N.Y.S.2d 708, (see also same case); 29 N.Y.2d 891, 328 N.Y.S.2d 679, 278 N.E.2d 913; Zegarelli v. Colp, 91 Misc.2d 430, 398 N.Y.S.2d 103; Davidson v. Hicks, 34 Misc.2d 451, 228 N.Y.S.2d 439; Padro v. Knobloch, 28 Misc.2d 898, 214 N.Y.S.2d 216; Kass v. Schneiderman, 21 Misc.2d 518, 197 N.Y.S.2d 979, 991; Smith and Motor Vehicle Accident Indemnification Corp. v. Lasko, 34 A.D.2d 629, 309 N.Y.S.2d 536; Catanese v. Whitlow, 59 A.D.2d 1057, 399 N.Y.S.2d 816; Podstupka v. Brannon and Schekter, 81 Misc.2d 338, 365 N.Y.S.2d 670; and Speller v. Ryder Truck Rental, 47 A.D.2d 608, 363 N.Y.S.2d 823, finds a clear distinction between the cases cited and the facts alleged in this litigation. The reported cases reflect situations where the ignition key may or may not have been left in the ignition and by implementation of Section 1210 of the Vehicle and Traffic Law, the plaintiff seeks to hold the defendant...
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