Smith v. Motor Vehicle Acc. Indemnification Corp.
| Decision Date | 14 April 1970 |
| Citation | 309 N.Y.S.2d 536,34 A.D.2d 629 |
| Court | New York Supreme Court — Appellate Division |
| Parties | In the Matter of the Demanded Arbitration Proceedings between David SMITH, as Administrator of the Estate of Anna Smith, Deceased, David Smith, Louise Lasko and Samuel Lasko, Claimants-Appellants, and MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION, Respondent-Respondent. Louise LASKO, Samuel Lasko, David Smith and David Smith, as Administrator of the Estate of Anna Smith, Deceased, Plaintiffs-Appellants, v. Sigmund HIRSCH and Gerlo Manufacturing Co., Inc., Defendants-Respondents. |
G. Sassower, New Rochelle, for appellants.
S. Gaines, New York City, for respondent-respondent.
J. C. Young, New York City, for defendants-respondents.
Before STEVENS, P.J., and EAGER, McGIVERN, McNALLY and TILZER, JJ.
Judgment entered February 5, 1969, unanimously modified on the law and the facts, to the extent of striking therefrom the third decretal paragraph, together with the provision for a permanent stay in the fourth decretal paragraph and substituting therefor a provision providing for a temporary stay, without costs and without disbursements. The stay appealed from, undertaking to permanently inhibit the claimants-plaintiffs from proceeding against the Motor Vehicle Accident Indemnification Corporation, is premature under the circumstances of this case. A violation of Section 1210(a) of the Vehicle and Traffic Law may result in the owner of the car being found guilty of negligence in the creation of an opportunity for the theft of the car. Yet, the trier of the facts may further find that the acts of Santiago, the thief in the instant case, were not the legal responsibility of the defendants herein. Lotito v. Kyriacus, 272 App.Div. 635, 74 N.Y.S.2d 599. A violation of the Vehicle and Traffic Law may still be found not to be the proximate cause of an accident. Ortiz v. Kinoshita, 30 A.D.2d 334, 294 N.Y.S.2d 48. Accordingly, it may eventuate that the defendants herein are not legally liable for the accident. In which event, a permanent stay would leave the plaintiffs remediless and denied recovery from anyone.
The order entered November 15, 1968, denying plaintiffs' motion for summary judgment is, however, unanimously affirmed, and for the foregoing reasons.
The appeal from the order dated January 13, 1969 denying resettlement of the judgment is dismissed as academic in view of the foregoing disposition.
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