Lynch-Fina v. Paredes

• Decision Date: 03 April 1995
• Docket Number: LYNCH-FINA
• Parties: Jamie, as Administratrix of the Estate of Michael D. Wagner, Jr., Deceased, and Jamie Lynch-Fina, Individually, Plaintiff, v. Derrick PAREDES and Gilda Taormina, Defendants.
• Court: New York Supreme Court

Page 255

627 N.Y.S.2d 255

164 Misc.2d 963

Jamie LYNCH-FINA, as Administratrix of the Estate of Michael D. Wagner, Jr., Deceased, and Jamie Lynch-Fina Individually, Plaintiff, v. Derrick PAREDES and Gilda Taormina, Defendants.

Supreme Court, Queens County,

IAS Term, Part 14.

April 3, 1995.

Ginsberg & Fedrizzi by Linda F. Fedrizzi, Flushing, for plaintiff.

Connors & Connors, P.C. by Deborah Y. Bajohr, Staten Island, for defendant Paredes.

Rossano, Mose, Hirschhorn & Corleto, P.C. by Neil R. Finkston, Garden City, for defendant Taormina.

DAVID GOLDSTEIN, Justice.

This is a motion by defendant Taormina for an order granting summary judgment dismissing the complaint, pursuant to CPLR 3212.

The action was brought to recover damages for the wrongful death of plaintiff's decedent, Michael D. Wagner, Jr., who, on October 26, 1991, was struck and killed by a vehicle owned by defendant Taormina and operated by defendant Paredes. At the time of the incident, Paredes, was intoxicated. He was arrested and subsequently pleaded guilty to Manslaughter in the Second Degree before Mr. Justice Hanophy, admitting that, at the time, he was intoxicated and was recklessly operating the vehicle. He was sentenced on January 4, 1993, to a 5-15 year term of imprisonment.

In seeking summary judgment relief, Taormina contends that the liability imposed upon her as owner of the vehicle under Vehicle and Traffic Law § 388 extends only to negligent acts by one using the vehicle with her permission or consent, not to reckless or grossly negligent conduct. In support of her position, she relies upon the underlying distinction between negligent and reckless conduct and, in particular, Ingle v. Mark, 58 Misc.2d 895, 296 N.Y.S.2d 664, where the court refused to impose upon the owner of the vehicle (a rental company), any responsibility for punitive damages directed against the operator, who, it was found, had acted in a grossly negligent manner.

Contrary to movant's argument, neither the statute nor any reported decisions support the claim that an owner's liability under § 388 of the Vehicle and Traffic Law is limited to negligence, and not reckless or grossly negligent conduct. Any such holding in line with that suggested by movant would be both logically and legally absurd and would impose a standard inconsistent with those authorities which have held that evidence of driving while intoxicated, as a statutory violation, would be prima facie proof of negligence, sufficient to impose liability upon a finding of a causal connection (see, O'Neill v. Hamill, 22 A.D.2d 691, 692, 253 N.Y.S.2d 289; see also, Cordero v. City of New York, 112 A.D.2d 914, 492 N.Y.S.2d 430).

In that context, the underlying purpose of Vehicle and Traffic Law § 388 is to have a financially responsible defendant where a vehicle, being operated with the owner's permission and consent, causes injury or death (Continental Auto Lease Corp. v. Campbell, 19 N.Y.2d 350, 352, 280 N.Y.S.2d 123, 227 N.E.2d 28; Aetna Cas. & Sur. Co. v Brice, 72 A.D.2d 927, 929, 422 N.Y.S.2d 203). For that purpose, the nature of the underlying offensive conduct is not dispositive, whether it be technically categorized as either negligence or gross negligence. Bearing in mind the statutory purpose to be accomplished, it is clear that the term "negligence" in § 388 is sufficiently broad to include gross negligence and reckless acts, contrary to the position assumed on this motion. The determination advanced by movant would defeat the central purpose the statute is designed to accomplish.

It would also effectively nullify well established precedent in effect for over 75 years, since at least Martin v. Herzog, 228...