Sweeney v. Bruckner Plaza Associates

• Decision Date: 18 December 2008
• Docket Number: 4287.
• Citation: 869 N.Y.S.2d 453,57 A.D.3d 347,2008 NY Slip Op 09913
• Parties: DELVIN SWEENEY, Appellant, v. BRUCKNER PLAZA ASSOCIATES et al., Respondents, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

57 A.D.3d 347

869 N.Y.S.2d 453

2008 NY Slip Op 09913

DELVIN SWEENEY, Appellant, v. BRUCKNER PLAZA ASSOCIATES et al., Respondents, et al., Defendants.

4287.

Appellate Division of the Supreme Court of New York, First Department.

December 18, 2008.

Judgment, Supreme Court, Bronx County (Patricia Anne Williams, J.), entered September 25, 2006, granting the motion of defendants Bruckner Plaza Associates and Zerega Recovery Corp. for a directed verdict at the close of plaintiff's evidence and dismissing the complaint, reversed, on the law, without

costs, the motion denied, the complaint reinstated, and the matter remanded for a new trial.

This action was commenced by plaintiff, a quadriplegic, to recover damages for personal injuries sustained as the result of Zerega's towing of plaintiff's customized van from a handicapped space at the parking lot of a shopping center owned and operated by Bruckner. When plaintiff called the police to inform them that his vehicle had been towed, he was instructed to wait at the shopping center. However, plaintiff decided to retrieve the van himself from the yard to which the van had been transported after Zerega's tow truck driver told him that the yard was only two blocks way. Plaintiff claims that as a consequence of retrieving the van he developed pneumonia and suffered tremendous strain on his hands and arms.

Defendants' motion for a directed verdict on the ground that plaintiff failed to make out a prima facie case on his claims for trespass to chattel and negligence was improperly granted. Plaintiff's evidence was sufficient to show that defendants lacked authority to remove plaintiff's vehicle (see Administrative Code of City of NY § 19-169.1 [b] [owner or operator of private parking facility prohibited from towing or causing to be towed vehicles from facility unless a sign is conspicuously posted stating, among other things, the name, address and telephone number of the tow operator]), and that the towing of the vehicle was therefore tortious. We disagree with the trial court that, as a matter of law, the towing did not proximately cause plaintiff's injuries, or that plaintiff's decision to retrieve his van was an intervening act that broke the causual nexus between the towing and plaintiff's injuries.

The issue of "[p]roximate cause is a question of fact for the jury where varying inferences are possible." (Rose v Brown & Williamson Tobacco Corp., 53 AD3d 80, 106 [2008] [internal quotation marks omitted].) Violation of the Administrative Code or the Rules of the City of New York constitutes some evidence of negligence (Cruz v City of New York, 13 AD3d 254 [2004]). "As a general rule, the question of proximate cause is to be decided by the finder of fact, once negligence has been shown" (Equitable Life Assur. Socy. of U.S. v Nico Constr. Co., 245 AD2d 194, 196 [1997). In determining proximate cause where there is an intervening act, liability turns on whether the intervening act was a foreseeable consequence of the defendant's negligence, and, as such, is generally a question for the finder of fact (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]).

Defendants contend that plaintiff's retrieval of his vehicle was an intervening act. Whether this was a "normal or foreseeable consequence of the situation created by the defendant[s'] negligence" (id.), however, is a factual issue, especially in light of the requirements of Administrative Code § 19-169.1 (b). It may be foreseeable that a person like plaintiff whose vehicle has been towed, may attempt to retrieve the vehicle, in circumstances like plaintiff was in, particularly when that person is constrained to rely on information provided by the tow operator's driver that the tow yard was only two blocks away, and in the absence of a statutorily required conspicuously posted sign giving, among other things, the address of the tow operator.

A directed verdict is only appropriate where there is no rational process that would lead the trier of fact to find for the nonmoving party (McDermott v Coffee Beanery, Ltd., 9 AD3d 195, 210 [2004]. In considering the motion "the trial court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant" (Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]). We do not find it unreasonable as a matter of law for plaintiff to brave the cold for what he thought was only a few blocks, especially since his specialized, unfoldable, motorized wheelchair and his physical condition made it extremely difficult for him to travel in anything other than a customized vehicle. Thus, it cannot be said as a matter of law that plaintiff's actions were so extraordinary as to break the causual nexus between defendants' actions and plaintiffs resultant injuries (Derdiarian, 51 NY2d at 315).

Concur—SAXE, J.P., ACOSTA and DeGRASSE, JJ.

Catterson and McGuire, JJ., dissent in a memorandum by McGuire, J., as follows:

I disagree with the majority that Supreme Court erred in granting defendants' separate motions at the close of plaintiff's case for dismissal of the causes of action for trespass to chattel and negligence based on events that occurred on December 23, 1997. Accordingly, I respectfully dissent in part.

On December 23, 1997, plaintiff, his teenage brother and a six-year-old boy (whose legal guardian was plaintiff) drove to a shopping center owned by defendant Bruckner. Plaintiff was a wheelchair-bound quadriplegic who drove his specially-equipped, handicapped accessible van to the shopping center. The van had neither handicapped license plates (see Vehicle and Traffic Law § 404-a) nor a government-issued placard (see Vehicle and Traffic Law § 1203-a) allowing him to park the van in a parking space designated for vehicles with either of those credentials (see Vehicle and Traffic Law § 1203-b [1] ["Parking spaces for the handicapped shall be those parking spaces according to a holder of a handicapped parking permit provided in accordance with section one thousand two hundred three-a or as provided in section four hundred four-a of this chapter"]). However, at approximately 5:55 P.M., plaintiff parked the van in a parking space designated for vehicles with those credentials.

After plaintiff and his companions exited the store at 6:45 P.M., they returned to the parking lot to find the van missing. The group searched the lot for the van for approximately 15 minutes, but did not find it. At approximately 7:00 P.M., plaintiff, using his cell phone, called "911" to report the van stolen. The police dispatcher plaintiff spoke to told him to wait at the shopping center for police officers to arrive.

Shortly after plaintiff called "911," a woman in the parking lot told plaintiff that his van had been towed and pointed to a tow truck in the lot that the woman believed had towed the van. Plaintiff talked to the driver of the tow truck, who apparently worked for defendant Zerega Recovery Corp.; the driver told plaintiff that he had towed the van and he refused to bring the van back to the shopping center. The tow truck driver, however, indicated to plaintiff that Zerega's storage lot was two blocks from the shopping center. Neither plaintiff nor his brother saw any sign in the parking lot indicating the name, address and telephone number of the tow operator of the lot. Following this conversation with the tow truck driver, plaintiff, at approximately 7:25 P.M., called "911" to inform the police that the van had not been stolen but towed and that he wanted the police to assist him in getting his van back. Again, the police dispatcher told plaintiff to wait at the shopping center for police officers to arrive.

At approximately 7:40 P.M., plaintiff and his companions decided to leave the shopping center and travel on the sidewalks to retrieve the van. Although the temperature was very cold, plaintiff did not have a jacket because he had left it in the van. The distance from the shopping center to Zerega's lot ultimately proved to be, in plaintiff's estimation, approximately 1.2 miles. The sidewalks were, in plaintiff's opinion, "messed up"; the sidewalks had many "bumps, cracks, holes" and other depressions that "[a]ffected [plaintiff] a lot[, caused him a] lot of pain . . . [and made him] very uncomfortable." Plaintiff wheeled himself most of the way between the shopping center and Zerega's lot, but his brother assisted him part of the time. When they reached Zerega's lot, a Zerega employee returned the van to plaintiff without charge.

Plaintiff commenced this action against Bruckner and Zerega seeking damages under a number of causes of action. Plaintiff claimed that, as a result of his exposure to the elements, the rough trip over the city sidewalks and the physical labor he expended in wheeling himself, he sustained injuries to his hands, wrists and forearms and contracted bronchitis. Plaintiff also asserted claims against Zerega based on an incident that transpired at Zerega's lot the day after the van was towed, i.e., December 24. Supreme Court granted in part and denied in part defendants' separate motions for summary judgment dismissing the complaint, and we affirmed (20 AD3d 371 [2005]). As a result of the orders on the summary judgment motions, plaintiff's causes of action for negligence and trespass to chattel remained. Supreme Court subsequently granted Zerega's motion in limine to preclude plaintiff from presenting evidence regarding his negligence cause of action against Zerega based on events that occurred on December 24, 1997. Plaintiff then proceeded to trial on his negligence claim based on the events of December 23, 1997 and his claim of trespass to chattel.

At trial, plaintiff's negligence cause of action was based on defendants' alleged failure to comply with Administrative Code of the City of New York § 19-169.1 (b), which prohibits the owner or operator...