Stiver v. Good & Fair Carting & Moving, Inc., CA 06-00509.

CourtNew York Supreme Court Appellate Division
Citation2006 NY Slip Op 06691,32 A.D.3d 1209,822 N.Y.S.2d 178
Decision Date22 September 2006
PartiesGREGORY G. STIVER et al., Respondents, v. GOOD & FAIR CARTING & MOVING, INC., Appellant.
Docket NumberCA 06-00509.
32 A.D.3d 1209
822 N.Y.S.2d 178
2006 NY Slip Op 06691
GREGORY G. STIVER et al., Respondents,
v.
GOOD & FAIR CARTING & MOVING, INC., Appellant.
CA 06-00509.
Appellate Division of the Supreme Court of the State of New York, Fourth Department.
September 22, 2006.

Appeal from an order of the Supreme Court, Erie County (John M. Curran, J.), entered December 21, 2005 in a personal injury action. The order denied defendant's motion for summary judgment dismissing the complaint.


It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is granted and the complaint is dismissed.

Memorandum: In an action to recover damages for personal injuries sustained in an automobile accident, defendant appeals from an order denying its motion for summary judgment dismissing the complaint. We agree with defendant that

32 A.D.3d 1210

Supreme Court erred in denying defendant's motion and thus we reverse.

On June 13, 2001, a mechanic employed by defendant performed a New York State motor vehicle inspection (Inspection) of an automobile owned by Stephen Corbett (Corbett), the defendant in a related action, and the vehicle passed the Inspection. On August 8, 2001, a vehicle driven by Gregory G. Stiver (plaintiff) struck Corbett's vehicle from behind when Corbett's vehicle abruptly stopped in the middle of a highway, causing plaintiff to sustain personal injuries. Plaintiffs alleged that transmission components in Corbett's vehicle malfunctioned, rendering the vehicle inoperable and causing the collision. Plaintiffs commenced this negligence action alleging that defendant failed to use reasonable care when performing the Inspection of Corbett's vehicle. We agree with defendant that, under the circumstances of this case, defendant owed no duty of care to plaintiffs.

In a tort action, a threshold question is whether the alleged tortfeasor owed a duty of care to the injured party (see Darby v Compagnie Natl. Air France, 96 NY2d 343, 347 [2001]), and it is settled that the existence and scope of a duty of care is a question for the courts (see generally Hamilton v Beretta U.S.A. Corp., 96 NY2d 222, 232 [2001]). Any duty of defendant to plaintiffs in this case must arise from its contractual agreement to perform the Inspection because it had no preexisting duty imposed by law to inspect Corbett's vehicle. As a general rule, recovery for negligent performance of a contractual duty is limited...

To continue reading

Request your trial
6 practice notes
  • Landon v. Kroll Lab. Specialists, Inc.
    • United States
    • New York Supreme Court Appellate Division
    • November 22, 2011
    ...188] Church v. Callanan Indus., 99 N.Y.2d 104, 111, 752 N.Y.S.2d 254, 782 N.E.2d 50; Stiver v. Good & Fair Carting & Moving, Inc., 32 A.D.3d 1209, 1210, 822 N.Y.S.2d 178, affd. 9 N.Y.3d 253, 848 N.Y.S.2d 585, 878 N.E.2d 1001; see also Prosser and Keeton, Torts § 92, at 655–656 [5th ed.] ). ......
  • Stiver v. Good & Fair Carting & Moving, Inc., No. 137.
    • United States
    • New York Court of Appeals
    • November 19, 2007
    ...contract, and a party to a contract is not liable in tort to noncontracting third parties" (Stiver v. Good & Fair Carting & Moving, Inc., 32 A.D.3d 1209, 1210, 822 N.Y.S.2d 178 [4th Dept.2006] ). We granted plaintiffs' motion for leave to appeal, and now affirm. 848 N.Y.S.2d 257 "[A] contra......
  • Kerwin v. Fusco, 230 CA 15-01344.
    • United States
    • New York Supreme Court Appellate Division
    • April 29, 2016
    ...of harm by exacerbating the dangerous condition of the stairway or making it less safe (see Stiver v. Good & Fair Carting & Moving, Inc., 32 A.D.3d 1209, 1210–1211, 822 N.Y.S.2d 178, affd. 9 N.Y.3d 253, 848 N.Y.S.2d 585, 878 N.E.2d 1001 ; Sniatecki v. Violet Realty, Inc., 98 A.D.3d 1316, 13......
  • Marks v. County of Orleans, CA 06-00902.
    • United States
    • New York Supreme Court Appellate Division
    • September 22, 2006
    ...when she drifted onto the right shoulder, overcorrected again when she veered into the oncoming lane, and then skidded off the road. 32 A.D.3d 1209 Supreme Court erred in denying those parts of defendant's motion seeking summary judgment dismissing the complaint and seeking summary judgment......
  • Request a trial to view additional results
6 cases
  • Landon v. Kroll Lab. Specialists, Inc.
    • United States
    • New York Supreme Court Appellate Division
    • November 22, 2011
    ...188] Church v. Callanan Indus., 99 N.Y.2d 104, 111, 752 N.Y.S.2d 254, 782 N.E.2d 50; Stiver v. Good & Fair Carting & Moving, Inc., 32 A.D.3d 1209, 1210, 822 N.Y.S.2d 178, affd. 9 N.Y.3d 253, 848 N.Y.S.2d 585, 878 N.E.2d 1001; see also Prosser and Keeton, Torts § 92, at 655–656 [5th ed.] ). ......
  • Stiver v. Good & Fair Carting & Moving, Inc., No. 137.
    • United States
    • New York Court of Appeals
    • November 19, 2007
    ...contract, and a party to a contract is not liable in tort to noncontracting third parties" (Stiver v. Good & Fair Carting & Moving, Inc., 32 A.D.3d 1209, 1210, 822 N.Y.S.2d 178 [4th Dept.2006] ). We granted plaintiffs' motion for leave to appeal, and now affirm. 848 N.Y.S.2d 257 "[A] contra......
  • Kerwin v. Fusco, 230 CA 15-01344.
    • United States
    • New York Supreme Court Appellate Division
    • April 29, 2016
    ...of harm by exacerbating the dangerous condition of the stairway or making it less safe (see Stiver v. Good & Fair Carting & Moving, Inc., 32 A.D.3d 1209, 1210–1211, 822 N.Y.S.2d 178, affd. 9 N.Y.3d 253, 848 N.Y.S.2d 585, 878 N.E.2d 1001 ; Sniatecki v. Violet Realty, Inc., 98 A.D.3d 1316, 13......
  • Marks v. County of Orleans, CA 06-00902.
    • United States
    • New York Supreme Court Appellate Division
    • September 22, 2006
    ...when she drifted onto the right shoulder, overcorrected again when she veered into the oncoming lane, and then skidded off the road. 32 A.D.3d 1209 Supreme Court erred in denying those parts of defendant's motion seeking summary judgment dismissing the complaint and seeking summary judgment......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT