Tobar v. City of New York

• Decision Date: 23 January 1989
• Docket Number: No. 2,No. 1,1,2
• Citation: 146 A.D.2d 694,537 N.Y.S.2d 192
• Parties: Monica TOBAR, etc., Plaintiff, v. CITY OF NEW YORK, et al., Defendants. (Action). Monica TOBAR, et al., Appellants v. CITY OF NEW YORK, Respondent, et al., Defendants. (Action).
• Court: New York Supreme Court — Appellate Division

Page 192

537 N.Y.S.2d 192

146 A.D.2d 694

Monica TOBAR, etc., Plaintiff, v. CITY OF NEW YORK, et al., Defendants. (Action No. 1).

Monica TOBAR, et al., Appellants v. CITY OF NEW YORK, Respondent, et al., Defendants. (Action No. 2).

Supreme Court, Appellate Division Second Department.

Jan. 23, 1989.

Maloney, Murphy, McLoone, Nelson, Dobise & McGrane, Williston Park (Curtis Sobel, of counsel), for appellants.

Peter L. Zimroth, Corp. Counsel, New York City (Fay Leoussis and Barry P. Schwartz, of counsel), for respondent.

Before SPATT, J.P., and SULLIVAN, HARWOOD and BALLETTA, JJ.

MEMORANDUM BY THE COURT.

In consolidated actions, inter alia, to recover damages for personal injuries, the plaintiffs in Action No. 2 appeal (1) from so much of an order of the Supreme Court, Queens County (Lerner, J.), dated February 27, 1987, as granted the branch of the defendant City of New York's motion which was for summary judgment dismissing the complaint as against it in Action No. 2, (2) from an order of the same court, dated October 14, 1987, which denied their motion for leave to renew a prior motion which resulted in a protective order dated September 2, 1986, which vacated their notice of discovery and inspection, and (3) from a judgment of the same court dated April 1, 1988, which, upon the order dated February 27, 1987, dismissed the complaint as against the city of New York in Action No. 2.

ORDERED that the appeals from the orders are dismissed; and it is further,

ORDERED that the judgment is affirmed insofar as appealed from; and it is further,

ORDERED that the defendant is awarded one bill of costs.

The appeal from the intermediate orders must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on appeal from the orders are brought up for review and have been considered on the appeal from the judgment (CPLR 5501[a][1] ).

The plaintiffs commenced Action No. 2, inter alia, to recover damages for the personal injuries they allegedly sustained when the plaintiff Monica Tobar, then seven months pregna with the infant plaintiff Lawrence Patrick Tobar, was a passenger in a vehicle which struck one or more purportedly illegally parked, detached trailers on 56th Road between 43rd and 48th Streets in the County of Queens. In their complaint, the plaintiffs essentially alleged that the defendant City of New York had been negligent in failing to warn against or remove the illegally parked trailers which obstructed the roadway. By notice of discovery and inspection dated July 18, 1986, the plaintiffs sought from the City disclosure of "[c]opies of all tickets and summonses issued to parked trailors (sic) on 56th Road in Queens for the period of March 2, 1982 to March 2, 1984, inclusive". The City moved for a protective order vacating the plaintiffs' notice of discovery and inspection on the grounds that it was overbroad, that the material it sought was irrelevant, and that compliance therewith would be unduly burdensome. In an order dated September 2, 1986, the Supreme Court granted the City's motion and vacated the notice of discovery and inspection. The record does not indicate that the plaintiffs made any further attempt to submit a more narrowly drawn discovery request.

Thereafter, by notice of motion dated November 19, 1986, the City moved for summary judgment dismissing all claims asserted against it. The motion was granted in an order dated February 27, 1987. By notice of motion dated August 31, 1987, the plaintiffs moved for leave to renew the City's motion for a protective order. The motion for leave to renew was denied in an order dated October 14, 1987. The plaintiffs now appeal from the latter two orders and the judgment entered thereon. We affirm.

Initially, we note that insofar as the plaintiffs' claims against the City are premised upon its failure to enforce statutes and regulations governing the parking and removal of vehicles (see, e.g., Vehicle and Traffic Law § 1204[b][2] ), the plaintiffs have failed to establish the existence of a special relationship creating a municipal duty to enforce such legislation for their protection (see, Kenavan v. City of New York, 70 N.Y.2d 558, 523 N.Y.S.2d 60, 517 N.E.2d 872; Solomon v. City of New York, 66 N.Y.2d 1026, 499 N.Y.S.2d 392, 489 N.E.2d 1294; Miller v. State of New York, 62 N.Y.2d 506, 478 N.Y.S.2d 829, 467 N.E.2d 493).

We find unpersuasive the plaintiffs' contention that...