Pagan v. Little Man Parking LLC

• Decision Date: 08 July 2010
• Docket Number: INDEX NUMBER:304226/2009
• Parties: JONATHAN PAGAN, Plaintiff, v. LITTLE MAN PARKING LLC, WORLD COPY INC. and MICHAEL F. SEVILLA, Defendants.
• Court: New York Civil Court

2010 NY Slip Op 33954(U)

JONATHAN PAGAN, Plaintiff, v. LITTLE MAN PARKING LLC, WORLD COPY INC. and MICHAEL F. SEVILLA, Defendants.

INDEX NUMBER:304226/2009

CIVIL COURT OF THE CITY OF NEW YORK COUNTY OF BRONX, PART 29

FILED: July 20, 2010

July 8, 2010

PRESENT: HONORABLE ROBERT E. TORRES, J.S.C.

Present: HON. ROBERT E. TORRES

The defendant WORLD COPY INC. moves for an order pursuant to CPLR § 3212 for an order dismissing the plaintiff's complaint with prejudice on the grounds that plaintiff can not make a prima facie case of negligence against the aforementioned defendant. Defendant WORLD COPY INC. also moves for an Order pursuant to C.P.L.R. § 8303-a awarding costs and fees for the filing of the frivolous action as against said defendant. Plaintiff opposes said motion. For the reasons set forth below, defendant WORLD COPY, INC.'s motion is granted.

The within action arises from a motor vehicle accident on May 12, 2008 at approximately 4:50 P.M. when plaintiff was a pedestrian crossing the street at the intersection of Brook Avenue and East 149^th Street in Bronx County he was struck by a vehicle owned by defendant WORLD COPY INC. but operated by the co-defendant, MICHAEL S. SEVILLA. As a result of the accident, plaintiff alleges that he sustained serious injuries.

In the Verified Bill of Particulars, plaintiff alleges negligent and reckless operation and control of the vehicle as well as negligent ownership and entrustment

According to defendant WORLD COPY INC., their employee, David Silva, parked thevehicle in question in defendant's LITTLE MAN PARKING LLC's facility and gave the keys to the van to the parking lot attendant. Defendant WORLD COPY INC. states it is customary for its employees to hand the keys to the attendant since said defendant has been parking their business vehicles in defendant's LITTLE MAN PARKING LLC's facility since July of 2000. Defendant WORLD COPY INC. states that in the early morning hours of May 6, 2008, defendant MICHAEL F. SEVILLA entered defendant's LITTLE MAN PARKING LLC's facility and remained seated in the aforementioned subject vehicle for an hour. Subsequently, defendant MICHAEL F. SEVILLA got the keys from the attendant and drove it out of the aforementioned facility. That same morning, defendant WORLD COPY INC. reported the vehicular theft to the 14^th Precinct. On May 12, 2008, the vehicle was involved in the aforementioned accident.

Defendant WORLD COPY INC. now moves for an order pursuant to CPLR § 3212 for an order dismissing the plaintiff's complaint with prejudice on the grounds that plaintiff can not make a prima facie case of negligence against the aforementioned defendant. Defendant WORLD COPY INC. also moves for an Order pursuant to C.P.L.R. § 8303-a awarding costs and fees for the filing of the frivolous action as against said defendant. In support of his motion, defendant submits a copy of the pleadings, an affidavit of John Deri, Owner and President of defendant WORLD COPY, INC., a copy of the police report, the incident reporting slip, and the deposition testimony of the plaintiff.

Plaintiff opposes the motion on the grounds that even though the van was reported stolen, there is a strong presumption that the van was being operated with defendant WORLD COPY INC.'s consent. Therefore, plaintiff argues that issues of law exists requiring further factual discovery. Plaintiff also argues that this action is not frivolous since the keys were handed to the thief and the keys were found in the ignition of the car. Aside from counsel's affirmation, plaintiff does notsubmit any exhibits in support of his argument. However, plaintiff references Exhibit D of movant's papers, the affidavit of John Deri, Owner and President of defendant WORLD COPY, PNC.

On motions for summary judgment, the court's function is issue finding rather than issue determination. Sillman v. Twentieth Century Fox Film Corp., 3 N.Y.2d 395 (1957); Rose v. DaEcib USA, 259 A.D.2d 258, 686 N.Y.S.2d 19 (1^st Dept., 1999). Since summary judgment is a drastic remedy, it should not be granted where there is any doubt as to the existence of a triable issue. Rotuba Extruders v. Ceppos, 46 N.Y.2d 223 (1978); Sillman v. Twentieth Century Fox Film Corp., supra.. Additionally, when reviewing a motion for summary judgment, the Court is not to determine credibility. Quinn v. Krumland, 179 A.D.2d 448 (1^st Dept. 1992).

In order to establish a prima facie case of negligence a plaintiff must establish that a duty was owed by the defendant to the plaintiff; that there was a breach of said duty, and that said breach was the proximate cause of plaintiff's injuries. See", Murray v. New York City Housing Authority, 269 A.D.2d 288 (1^st Dept. 2000).

In reviewing the papers, it is evident that there is no evidence to support a claim of negligence against defendant WORLD COPY INC. . Although plaintiff argues that the keys were in the ignition at the time of the theft, he fails to provide any factual basis from which to reach said conclusion. Notably, there is...