Singh v. Kolcaj Realty Corp.

• Decision Date: 29 May 2001
• Citation: 725 N.Y.S.2d 37,283 AD2d 350
• Parties: (A.D. 1 Dept. 2001) Baljit Singh, Plaintiff-Respondent, v. Kolcaj Realty Corp., Defendant-Appellant, and Lawkinder Singh, et al., Defendants. 3879 : FIRST JUDICIAL DEPARTMENT
• Court: New York Supreme Court — Appellate Division

Page 37

725 N.Y.S.2d 37 (A.D. 1 Dept. 2001)

Baljit Singh, Plaintiff-Respondent, v. Kolcaj Realty Corp., Defendant-Appellant, and Lawkinder Singh, et al., Defendants.

3879

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: FIRST JUDICIAL DEPARTMENT

MAY 29, 2001

Steven B. Dorfman - for plaintiff-respondent,

Brian A. Kalman - for defendant-appellant.

Williams, J.P., Wallach, Lerner, Rubin, Friedman, JJ.

Order, Supreme Court, Bronx County (Anne Targum, J.), entered on or about October 19, 2000, which denied the motion of defendant Kolcaj Realty Corp. for summary judgment dismissing the complaint and all cross-claims against it, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment in favor of defendant-appellant dismissing the complaint and cross-claims as against it.

While driving his car towards the exit of a parking lot, defendant Lawkinder Singh depressed the accelerator instead of the brake, striking plaintiff Baljit Singh and pinning him against a parked vehicle owned by defendant Sepulveda. (Plaintiff Baljit Singh and defendant Lawkinder Singh are unrelated.) plaintiff predicates liability against appellant Kolcaj Realty Corp. on the theory that the parking space occupied by the Sepulveda vehicle exceeded the capacity of the parking lot specified in the certificate of occupancy, and that appellant was therefore negligent in creating a hazard that was a substantial factor in causing his injuries. Plaintiff's position is without merit.

It is uncontested that the Sepulveda vehicle was merely a stationary object into which plaintiff was fortuitously propelled as the result of defendant Singh's loss of control of his automobile (see, Margolin v Friedman, 43 N.Y.2d 982). The violation of an ordinance as the result of the failure to abide by the certificate of occupancy "does not establish negligence as a matter of law" (Shinshine Corp. v Kinney System, 173 A.D.2d 293, citing Long v Forest-Fehlhaber, 55 N.Y.2d 154, 160). Even if the creation of an extra parking space by appellant Kolcaj were assumed to constitute negligence, it is not a proximate cause of plaintiff's injury so as to subject appellant to liability. Appellant's presumed negligence falls into that category of "independent intervening acts which operate upon but do not flow from the original negligence" and, therefore, constitutes an unforeseeable consequence of the original negligent act as a matter of law (Derdiarian v Felix Contr. Co., 51 N.Y.2d 308, 315, rearg denied 52 N.Y.2d 784, 829; see also, Murray v New York City Hous. Auth., 269 A.D.2d 288, 289-290). That a stationary object might constitute a hazard does not require the conclusion that it is an immediate contributing cause of injury, even where no act of a third-party intervenes (see, Howard v Poseidon Pools, 72 N.Y.2d 972, 974 [shallow pool bottom]).

The opinion given by plaintiff's expert "with a reasonable degree of engineering certainty" that the violation of the certificate of occupancy materially contributed to plaintiff's injuries is of...