Frame v. Mack Markowitz, Inc.

• Decision Date: 15 December 1986
• Citation: 509 N.Y.S.2d 372,125 A.D.2d 442
• Parties: John FRAME, et al., Appellants, v. MACK MARKOWITZ, INC., Respondent.
• Court: New York Supreme Court — Appellate Division

Page 372

509 N.Y.S.2d 372

125 A.D.2d 442

John FRAME, et al., Appellants, v. MACK MARKOWITZ, INC., Respondent.

Supreme Court, Appellate Division,

Second Department.

Dec. 15, 1986.

Lysaght, Lysaght & Kramer, Mineola (James J. Lysaght, of counsel), for appellants.

McCabe, Nicolini, Paradise & Cozzens, Mineola (Stephen M. McCabe and James S. Kehoe, on the brief), for respondent.

Before BRACKEN, J.P., and NIEHOFF, EIBER and SULLIVAN, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (McGinity, J.), dated May 20, 1985, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with costs, and the motion is denied, with leave to renew after the completion of discovery.

The plaintiffs John Frame and Richard Nalbach were injured on February 1, 1983, when struck by an automobile owned by defendant Mack Markowitz, Inc., an automobile dealer, and operated, at the time of the accident, by one Raymond Hoffman. There is no dispute that the automobile in question had been stolen on the day before the accident and that Hoffman, at the time of the accident, was operating it without the owner's consent. The plaintiffs thereafter commenced the instant action to recover damages, seeking to hold the defendant liable upon a violation of Vehicle and Traffic Law § 1210(a), which provides that "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". At the time of the accident herein, the above section was applicable only to those vehicles parked upon highways and private roads open to the public (Vehicle and Traffic Law § 1100). In their complaint, the plaintiffs asserted that the defendant's vehicle had been left unattended with its motor running "in the roadway located near or about the front of 180 Main Street", Hempstead, i.e., the defendant's place of business.

The defendant brought the instant motion for summary judgment on the ground that no violation of the Vehicle and Traffic Law had occurred, as, at the time of the theft, the car was located not on the public roadway but within its private parking lot.

It has been held that Vehicle and Traffic Law § 1210 does not apply to automobiles left in private parking lots (see, Albouyeh v. County of Suffolk, 96 A.D.2d 543, 465 N.Y.S.2d 50, affd. 62 N.Y.2d 681, 476 N.Y.S.2d 522, 465 N.E.2d 29), although Vehicle and Traffic Law § 1100 has, since the accident here, been amended to cover that situation also.

In support of its motion, the defendant submitted the affidavit of an employee who witnessed the theft and who stated that the car had been left running in the defendant's private parking lot, which was not open to the public. In...