Castelluccio v Wolfe

[*1] Castelluccio v Wolfe 2005 NY Slip Op 50972(U) Decided on June 24, 2005 Supreme Court, Rockland County Smith, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 24, 2005
Supreme Court, Rockland County

Matthew J. Castelluccio and Rochelle Kupperman, Plaintiffs,

against

Irving M. Wolfe, BNY WESTERN TRUST COMPANY AS CERTIFICATE TRUSTEE ON BEHALF OF TOSCO TRUST 2000-E, TOSCO CORPORATION, TOSCO OPERATING COMPANY, INC., THREE STAR SERVICE CENTER, INC., U-HAUL CO. OF LOWER HUDSON VALLEY, INC., U-HAUL INTERNATIONAL, INC., EXXON MOBIL CORPORATION, COUNTY OF ROCKLAND and TOWN OF RAMAPO, Defendants.



5513-03



Howard R. Reiss, Esq.

Reiss, Eisenpress & Eisenberg, Esqs.

Attorneys for Plaintiffs

425 Madison Avenue

New York, NY 10022-5602

Daniel Bertolino, Esq.

Attorney for Defendant Irving M. Wolfe

495 South Main Street

New City, NY 10956

James Downes, Esq.

Rende, Ryan & Downes, LLP

Attorneys for Service Center

202 Mamaroneck Avenue

White Plains, New York 10601

James Rodgers, Esq.

Wilson, Bave, Conboy, Cozza & Couzens, P.C.

Two William Street

White Plains, NY 10601

Mendes & Mount, LLP

Attorneys for the Tosco Defendants

and ExxonMobil Oil Corporation

750 Seventh Avenue

New York, NY 10019

Boeggeman, George, Hodges & Corde, P.C.

Attorneys for Defendants U-Haul and U-Haul International, Inc.

11 Martine Avenue

White Plains, NY 10606

Mary H. Smith, J.

This action arises out of an accident between defendant Irving M. Wolfe's ("defendant Wolfe") car and plaintiff Matthew J. Castelluccio's ("plaintiff" or "Matthew") motor cycle on May 17, 2003 on Route 202 in the Town of Ramapo, State of New York. As a result of the accident, plaintiff is now paralyzed.

It is undisputed that defendant Wolfe was driving his car westbound on Route 202 and that plaintiff was driving his motorcycle eastbound on Route 202 when defendant Wolfe made a left turn across plaintiff's lane of travel in order to access the eastern-most driveway of the Mt. Ivy Exxon Gas Station (herein referred to as "Service Center") which is located on the south side of Route 202. According to plaintiff, he "immediately tried to stop, but recognized right away that there would not be enough time, particularly when it seemed as if Mr. Wolfe's car had slowed down in the process of making the left turn." (Affidavit of Matthew Castelluccio, sworn to February 8, 2005 "Castelluccio Aff." at ¶ 3). Plaintiff further avers that during that split second, he looked to the left to see if he could go around defendant Wolfe's car, "but saw cars heading westbound proceeding past him and realized that [he] could hit a car sooner if [he] went that way and thus risk even greater injury." (Castelluccio Aff. at ¶ 5). According to plaintiff, he then looked to "the right toward the shoulder and saw a large U-Haul truck, as well as some other vehicles parked nearby. From my vantage point, I could not tell how close they were to the shoulder, but they certainly seemed to loom over the shoulder, near enough to dissuade me from going in that direction to avoid the accident or to minimize any injury. It seemed to me that if I tried to use the shoulder, it was likely that I would hit the U-Haul truck or the other vehicles sooner and thus at a faster speed sustaining even worse injuries." (Castelluccio Aff. at ¶6).

Plaintiffs theory of liability against all of the defendants other than defendant Wolfe rests on their argument that: (1) there were car(s) parked in the eastern-most driveway entrance that affected defendant Wolfe's ability to complete his turn into Service Center (i.e., "whether the vehicle parked in the driveway entrance made it difficult for defendant Wolfe to move further [*2]into the driveway entrance to complete his turn in enough time to avoid Mr. Castelluccio or to allow Mr. Castelluccio to avoid him" Plaintiffs' Memorandum of Law in Opposition at 4); and (2) that "the parking of the U-Haul truck and other vehicles so near the shoulder on the western side of the station in violation of a town ordinance created a dangerous condition affecting Mr. Castelluccio's ability to use the shoulder area to avoid colliding with Mr. Wolfe's car, thus contributing to and aggravating the nature of the catastrophic injuries he suffered." (Plaintiff's Memorandum of Law in Opposition at 1-2).

Service Center's Motion for Summary Judgment

Service Center's motion for summary judgment rests on its arguments that there has been no evidence suggesting that the manner in which vehicles were parked on the Service Center's premises (or on property adjacent thereto abutting the shoulder of Route 202) contributed to the accident. Service Center relies on defendant Wolfe's deposition testimony wherein he answered "yes" to the question that he had looked and saw that it was clear for him to pull his vehicle completely into the station and "No" to the question "was there anything about the condition of the east driveway of the gas station that you turned into that affected your ability to make your turn." (Deposition of Irving Wolfe "Wolfe Deposition" at 53-54 and 80-81). In addition, Service Center relies on defendant Wolfe's testimony that there were no vehicles pulling out of the eastern driveway at the time he made his left turn. (Wolfe Deposition at 37). This fact is important because according to Service Center, it establishes that the parked vehicle parked had no impact on defendant Wolfe's ability to make the left turn. Finally, Service Center points to defendant Wolfe's testimony that his car's front tires were just over the white line separating the lane of travel on the eastbound side of Route 202 with the shoulder when he heard the thud of the accident. (Id. at 76). Based on the foregoing, Service Center argues that there was nothing about the "layout, design, construction, condition or use of the east driveway" that "interfered with, prevented or affected WOLFE's ability to make a left hand turn and travel across the east bound lane of Route 202 into the gas station." (Affirmation of Christopher J. Whitton, Esq. "Whitton Aff." at ¶ 20). Service Center further argues that "[t]here can be no dispute that the THREE STAR premises, specifically the east driveway, was in a reasonably safe condition." (Whitton Aff. at ¶ 23).

With regard to plaintiffs' contention that the U-Haul and other vehicles parked in or near the shoulder of Route 202 caused the accident, Service Center first points to plaintiff's testimony that he couldn't identify definitively whether the vehicles were actually parked in the paved portion of the shoulder of Route 202. Service Center also relies on the Affidavit submitted by Yuda Avla, a shareholder and secretary of Service Center who was working on the day of the accident, wherein he attests that there were no vehicles parked in the paved shoulder of Route 202 and further that he discerned plaintiff's motorcycle to be traveling at a rate of speed of 50-65 miles an hour. Finally, Service Center has annexed a photograph taken on the day of the accident which it argues evidences that no vehicles were parked in the shoulder on the day of the accident. Based on the foregoing evidence, Service Center argues that at best, the evidence definitively establishes that the vehicles may have been parked on the unpaved area depicted in Exhibit I to its moving papers, which is private property abutting the shoulder of Route 202. Service Center [*3]concludes that :

Coupled with the facts demonstrated above, of the clear, open, straight nature of the roadway, of the operation of the motor vehicle by WOLFE turning left across the road in front of the plaintiff and in the plaintiff's operation of his motorcycle at an extremely high rate of speed, the evidence clearly demonstrates that negligent vehicle operation was the sole proximate cause of the accident."

(Whitton Aff. at ¶ 50).

Plaintiffs have opposed the motion by pointing to testimony and photographs which they contend raise questions of fact concerning whether Service Center created a hazardous condition on the premises and whether the hazardous condition caused the accident or contributed to the severity of the injuries Matthew sustained. With regard to the car parked in the entrance to the eastern driveway to the Service Center, Service Center annexes defendant Wolfe's deposition transcript wherein he admitted to having difficulty completely entering the eastern driveway due to the location of a parked car. The parked car to which defendant Wolfe was referring, however, does not appear to be the car that was actually parked to the right of the eastern driveway entrance and, instead was a car parked parallel to the gas pumps, which thereby shortened the driveway's entrance and blocked defendant Wolfe's ability to completely enter the Service Center. (Wolfe Deposition at 24-26).

With regard to whether the U-Haul and other vehicles parked in or abutting the shoulder of Route 202 contributed to the accident, plaintiffs rely on Matthew's deposition testimony and his affidavit which make clear that from Matthew's perspective, the location of these vehicles prevented him from using the shoulder of Route 202 in the emergency that had been presented by defendant Wolfe. According to Matthew, if these vehicles had not been parked there, he would have veered into the shoulder and this may have prevented/reduced the severity of his injuries.

The Tosco Defendants' Motion for Summary Judgment

It is undisputed that there are two separate but closely related relationships between the Tosco defendants and Service Center i.e., franchisor/franchisee and landlord/tenant. Because plaintiffs have not provided any evidence suggesting that they are basing liability on a negligent design of the Service Center premises, the only basis for liability against the Tosco defendants would be as the franchisors and landlords of the Service Center.[FN1] Thus, as landlord and franchisor, plaintiffs seek to hold the Tosco defendants liable for the hazardous condition plaintiffs contend existed on the Service Center's premises.

The Tosco defendants move for summary judgment on the ground that they are out of possession landlords and that the franchise agreements "reflect the understanding of the parties that Three Star was to have exclusive control over the day to day operations of the Mr. Ivy Service Station." (Tosco Defendants' Memorandum of Law at 3). In support of the notion that they are out of possession landlords, the Tosco defendants point to the lease provision, Article 3, which provides that Service Center will (1) make no unlawful use of the premises, (2) comply with all statutes ordinances, building codes, zoning codes, etc. and (3) [*4]not allow any safety hazards or dangerous conditions to exist on the premises. The Tosco defendants also point to section 12.2 of the franchise agreement which provides "[n]othing in the LEASE has as its purpose the reserving or granting of rights to TOSCO to exercise any control over, or to direct in any respect, the operation or management of TENANT's business. TENANT controls, directs, operates and manages its business and employees subject only to the performance of its contractual obligations under this lease."

In opposition, plaintiffs contend that the Tosco defendants did maintain sufficient control over the premises to confer liability on them. Plaintiffs also point to Article 3 of the lease which imposes many requirements on Service Center in its use and maintenance of the premises. Based on those provisions, plaintiffs argue that "Tosco controlled, among other things, not only the products that could be sold at the Mt. Ivey Exxon, and the hours of its operation, but also prohibited Mt. Ivey from (a) violating the law in its use of the property (Paragraph B), using the premises for the storage or rental of vehicles (Paragraph I), and obstructing the entrances to the property (Paragraph Q) - the very things that ultimately contributed to Matt's injuries in this case. Significantly, pursuant to the Lease, Mt. Ivey Exxon was even required to inform Tosco of the summons that it received for parking vehicles on the front set back." (Plaintiff's Memorandum in Opposition at 12). Lastly, plaintiffs rely on the fact that the lease specifically provided that Service Center was not to use the premises for the parking, storage, rental or also of motor vehicles, trailers or any other vehicles or equipment.

U-Haul's Motion for Summary Judgment

In its motion for summary judgment, U-Haul explains that it is a company "that merchandises U-Haul equipment and supervises the maintenance and repair of U-Haul equipment in Rockland and Westchester Counties of New York." (Affidavit of Robert Collocola at ¶ 3). The merchandising occurs either through U-Haul Moving Centers or through authorized dealers such as defendant Service Center herein, who rents the U-Haul equipment through dealership agreements. According to U-Haul's deponent, Mr. Collocola, U-Haul assists the independent authorized dealers by training the dealers in the use of the U-Haul computer system, U-Haul forms and U-Haul policies and procedures; training the dealers in the mechanics of handling equipment rentals and returns; providing signs, forms and supplies and assisting with the equipment maintenance and financial matters. According to U-Haul, the allegations against it in the complaint relate to: (1) Service Center's alleged parking of the U-Haul truck in or near the shoulder of Route 202; (2) that the placement of that truck somehow contributed to the accident; and (3) that

U-Haul is liable either because it possesses or controls a portion of the space at the Service Center for the U-Haul equipment or that it "inspects, controls, directs or approves" the placement of U-Haul vehicles at the Service Center.

U-Haul contends that it is entitled to summary judgment because: (1) there is no evidence that the U-Haul truck in any way contributed to the accident at issue (i.e., it was not a proximate cause of the accident); or (2) even if the court were to find that the placement of the U-Haul truck was a proximate cause of the accident, U-Haul as a matter of law is not liable. With regard to this second point, U-Haul argues that no liability can attach since it only had a dealership contract with Service Center and it did not possess or control the premises, and furthermore, that it cannot be liable for the truck's placement since it did not direct, suggest or approve the truck being parked in that location. These facts are confirmed in the Affidavit of U-Haul's Field Manager, Robert Collocola, who avers that during the period December 18, 2001 to October, 2003, he was U-Haul's contact with Service Center and that he visited Service Center once every 45-60 days, and that to his knowledge, nobody else from U-Haul had contact with Service Center other than him during this time [*5]period. Mr. Collocola is very clear in his statement that at no time did U-Haul direct Service Center "to place U-Haul trucks, trailers or tow dollies in front of the service station or anywhere near Route 202, nor did it suggest or approve locating trucks in those locations." (Affidavit of Robert Collocola, sworn to January 26, 2005 at ¶ 8). Mr. Collocola further avers that U-Haul provided "periodic administrative support" but "did not direct or control any of [Service Center's] day-to-day operations, did not own [Service Center], and did not employ any person who worked at [Service Center]." (Id. at ¶ 9).

Plaintiffs oppose the motion by providing excerpts from Mr. Collocola's deposition transcript. Plaintiffs contend that this testimony shows that Mr. Collocola frequently visited Service Center to ensure that Service Center was properly running the U-Haul rental facility and that Mr. Collocola confirmed that on these visits, he saw trucks parked in the vicinity of the area in question in this case directly abutting Route 202. Plaintiffs also rely on marketing materials that U-Haul evidently provided to dealers (however, there is no evidence that U-Haul provided these materials to Service Center [FN2]). In these materials,

U-Haul encouraged its independent distributors to display the U-Hauls in the "frontline", but further advised its dealers to use their mature judgents insofar as the placement should always take into consideration landlord relations or zoning issues. Thus, it is plaintiffs' position that since U-Haul's literature encouraged its dealers to find the best locations for highest display visibility, it should be held responsible for Service Center's parking of the U-Haul truck in the area which was either in or immediately abutting the shoulder of

Route 202.

LEGAL DISCUSSION

In granting a motion for summary judgment as a matter of law, the trial court must determine that by no rational process could the trier of fact find in favor of the nonmoving party on the evidence presented. (Szczerbiak v. Pilat, 90 NY2d 553, 556; Blum v. Fresh Grown Preserve Corp., 252 NY 241). In deciding the motion, the evidence must be viewed in a light most favorable to the nonmoving party, and the motion should not be granted where the facts are in dispute, where different inferences may be drawn from the evidence, or where the credibility of the witnesses is in question. (Szczerbiak v. Pilat, supra, Cameron v. City of Long Beach, 297 AD2d 773; Dolitsky v. Bay Isle Oil Co., 111 AD2d 366). To be entitled to summary judgment, defendants were required to establish as a matter of law that they did not create a hazardous condition or are not otherwise responsible for remedying a hazardous condition. (Gordon v. American Museum of Natural History, 67 NY2d 836; Gedney v. Atcosta, 5 AD3d 542).

The law with regard to liability for dangerous conditions occurring on a premises has been set forth as follows: "Absent a duty of care to the person injured, a party cannot be liable in negligence .... Liability for a dangerous condition on property is predicated upon occupancy, ownership, control or a special use of such premises .... The existence of one or more of these elements is sufficient to give rise to a duty of care. Where none is present, [*6]a party cannot be held liable for injury caused by defective or dangerous condition of the property."

(Balsam v. Delma Engineering Corp., 139 AD2d 292, 296-297, app. dismissed in part and denied in part, 73 NY2d 783). With regard to Service Center's liability, to the extent plaintiffs are claiming that it negligently maintained its vehicles in or unreasonably close to the shoulder of Route 202, the law is that "liability can be imposed upon an abutting landowner or lessee for the condition of the adjoining property only where said landowner or lessee has created an unsafe condition ... or where he has put a part of the public way to a special use for his own benefit." (Id. at 298). If the abutting landowner "puts part of a public way to a special use for his own benefit and the part used is subject to his control, [the abutting landowner is obligated] to maintain the part so used in a reasonably safe condition to avoid injury to others." (Id.).

With regard to the Tosco defendants, the law with regard to the liability for out of possession landlords is well settled: "[A]n out of possession owner or lessor is not liable for injuries that occur on the premises unless the owner or lessor has retained control over the premises or is contractually obligated to repair or maintain the premises."

(Baker v. Getty Oil Co., 242 AD2d 644, 645, app. denied, 93 NY2d 801; see also Wright v. Reinblum, 220 AD2d 660, app. denied, 87 NY2d 807; Suarez v. Skateland Presents Laces, Inc., 187 AD2d 500). Furthermore, the Appellate Division, Second Department has held that the landlord's reservation of the right to inspect the premises and to perform the covenants that the tenant failed to perform does not confer liability on the landlord. (Lafleur v. Power Test Realty Co. Limited Partnership, 159 AD2d 691 ["a landlord's mere reservation of the right to enter a leased premises and make repairs or correct improper conditions is insufficient to give rise to liability for a subsequently arising dangerous condition"]).

Similar to landlords, the liability of franchisors is dependent upon the degree of control the franchisor has over the franchisees' day-to-day operations. However, provisions in a franchise agreement requiring that the franchisee comply with minimum business standards set by the franchisor do not, as a matter of law, show that the franchisor retained sufficient "control over the premises and ... day-to-day business operations as would permit the imposition of liability against it ...." (Baker, supra, 242 AD2d at 645; see also Schoenwandt v. Jamfro Corp., 261 AD2d 117 [franchisor's right to terminate agreement if disapproved of franchisee's conduct or right to re-enter the premises do not provide a basis for imposing liability on franchisor]; Ross v. Mobil Oil Corp., 173 AD2d 361 [franchisor's right to inspect the premises to ensure displays were neatly arranged, toilets cleaned and receptacles emptied was not sufficient to "postulate a duty running to the plaintiff"]).

In Abreu v. Getty Refining and Marketing Co., 121 AD2d 419, a pedestrian sued both the service station, whose employee seriously injured plaintiff when he was road testing a vehicle for the station, as well as the lessor of the service station. In reversing the lower court's denial of summary judgment, the Appellate Division, Second Department held that to be "legally accountable for the plaintiff's injuries, Getty must have had the right 'to direct and control the manner of performing the very work in which the carelessness occurred.'" (Abreu v. Getty Refining and Marketing Co., 121 AD2d 419, 419). Similar to the lease in this case, the lease in Abreu provided that lessee was permitted to conduct its business as it saw fit, and the lessor had not right to exercise control or management over the business or operations of lessee. Thus, the Court reasoned that since Getty was not contractually entitled to supervise or control the operations of the service center or control the service center's employees, it may not as a matter of law be held liable for plaintiff's injuries. [*7]

The cases cited by plaintiffs in opposition to the Tosco Defendants' motion are readily distinguishable. For example, in Gerber v. West Hempstead Convenience Store, 2 AD3d 260, summary judgment was denied to franchisor/lessor who regularly inspected the franchisee's premises and testified at a deposition that if she had seen a missing tile at the mini mall (which was the cause of the accident in that case) she would have made a note of it and required the franchisee to fix it. There was also evidence that the franchisor's inspector made a note of the missing tile. Furthermore, there was a question of fact whether the lessor had rented the premises with this dangerous condition already existing and therefore, knew or should have known about the dangerous condition. Here, the evidence is undisputed that Service Center was the entity responsible for the location of where the vehicles were parked, and that the Tosco defendants had no control over Service Center's day-to-day operations.

In Massucci v. Amoco Oil Co., 292 AD2d 351, the landlord, Amoco Oil ("Amoco") split its building in half, the lessee having possession of one-half and defendant Amoco having possession of one-half. The injury at issue in that case occurred as the result of a frayed rug in the vestibule of the building. Because the lease did not establish that the vestibule was part of the lessee's leased space, and because Amoco employees used the vestibule to enter and exit the building, the Court found there was a question of fact whether Amoco as landlord "'retained sufficient control over the premises to be held to have constructive notice of the condition.'" (Massucci v. Amoco Oil Co., 292 AD2d 351, 352). Here, there is no question of fact that the Tosco defendants were not in possession of the Service Center nor did they have control over Service Center's placement of the vehicles on the premises. The fact that the lease provided that Service Center would not rent vehicles from the premises merely gave the Tosco defendants the right to terminate the lease. It cannot be construed as giving them the right to control the placement of vehicles, some of which were arguably there to be serviced and not rented, so as to confer liability on the Tosco defendants.

Finally, in Mikolajczyk v. M.C. Morgan Contractors, Inc., 273 AD2d 864, two different lessees of the premises as well as the owner of the premises were sued for plaintiff's injuries resulting from his having slipped on ice on a walkway leading from the building to a warehouse. In that case, because the landlord defendant testified at the deposition that she was at the premises often and would occasionally remove snow and ice, the landlord defendant had failed to meet her burden of establishing that she did not retain control of the premises. Again, here, there has been no testimony from the Tosco defendants (or any other evidence for that matter) that they retained control over the Service Center such that they may be held accountable for the accident in this case.

The Court finds that the evidence presented conclusively establishes the Tosco defendants' entitlement to summary judgment dismissing the complaint since the Tosco defendants: (1) did not create the dangerous condition; (2) did not have the duty to maintain the premises under the lease's terms; and (3) did not have the right to control Service Center's day-to-day operations. Plaintiffs have failed to raise a question of fact, and, accordingly, the action against the Tosco defendants must be dismissed.

For similar reasons, U-Haul's motion for summary judgment must also be granted. The relationship between U-Haul and Service Center may be analogized to that of a franchisor/franchisee. U-Haul has presented proof that it had no control over the placement of the vehicles at the Service Center and did not direct or encourage the placement of the vehicles in that gravel area abutting Route 202 depicted in Exhibit I to Service Center's moving papers. Furthermore, U-Haul provided evidence that it did not control Service Center's day-to-day operations, so U-Haul had no ability to control the placement of the vehicles on Service Center's premises. Finally, even if the Court were to find that the marketing materials regarding the placement of the U-Haul equipment in order to obtain maximum visibility had been provided to Service Center, these marketing materials cannot [*8]provide a basis for liability since under no interpretation can these materials be viewed as directing the dealers to place U-Haul vehicles in or directly abutting the shoulders of roadways. Instead, the materials suggest that while the dealers should look to maximize the visibility of the vehicles, the vehicles' placement should nevertheless not violate lease provisions or zoning codes.

With regard to Service Center's motion for summary judgment, the Court finds that there are questions of fact concerning whether or not Service Center created a hazardous condition in the placement of the vehicles on the premises, and whether the vehicles' placement was a proximate cause of the accident. The testimony of defendant Wolfe was confused at best with regard to the condition of the east driveway. Furthermore, a review of the photograph of the east driveway reveals (and Service Center does not dispute) that there was a vehicle parked there which did narrow the width of available access to the driveway. And while defendant Wolfe was not referring to that vehicle when he was explaining why he was unable to pull in fully to the Service Center's premises, the Court cannot find as a matter of law that the way that car and possibly other cars were parked had no effect on the manner in which defendant Wolfe's performed his left turn. Furthermore, Matthew's deposition testimony and affidavit have also created a question of fact regarding whether Service Center's placement of the vehicles in the area abutting the shoulder of Route 202 had a contributing effect on this accident insofar as Matthew was unable to avert the head-on collision with defendant Wolfe's vehicle.

It is self-evident that the shoulder of a roadway is to remain unobstructed so that vehicles traversing the roadway may use the shoulder in the event of an emergency. It is certainly foreseeable, therefore, that if the shoulder were to be obstructed, vehicles would be impeded from rightfully using the shoulder and that an accident could easily result. Based on the evidence provided so far, and viewed in a light most favorable to plaintiffs, the Court finds that a jury may find that Service Center improperly obstructed the shoulder by placing its vehicles either in the shoulder or so close to the shoulder that the shoulder could not be used for the purpose for which it was intended and, therefore, the vehicles' placement has a causal connection to the accident in this case. Furthermore, the Court is not convinced that the blockage to which defendant Wolfe testified concerning the eastern driveway did not in any way interfere with the speed at which defendant Wolfe proceeded in making the left hand turn into that driveway. [FN3]

In support of their arguments that even if the vehicles were in the gravel areas [*9]abutting Route 202, as a matter of law, those vehicles were not the proximate cause of the accident, Service Center and the other defendants rely on cases which hold that objects located on the side of a paved roadway cannot be the proximate cause of a vehicular accident as a matter of law. (Kirtoglou v. Fogarty, 235 AD2d 1019; Tomassi v. Town of Union, 46 NY2d 91).

The cases, however, are not controlling. In Kirtoglou, plaintiff, driver of a vehicle, took evasive action to avoid hitting several cars parked on the side of the road (the "obstructing vehicles"). As a result of the evasive action, plaintiff's car hit a car in the opposite lane of travel and then hit a utility pole located five feet off the roadway. In that case, the Court held that plaintiff had failed to raise "a material factual dispute regarding how or why this accident took place, or more precisely, whether the presence of the utility pole was one of its causes. Put another way, under no version of events that day can it be said that this accident was set into motion by the presence of the utility pole ...." (Kirtoglou, 235 AD2d at 1021-1022). Accordingly, as the utility pole could not under any set of facts be found to be a proximate cause of the accident, the action was dismissed against the utility company. It is interesting to note, however, that in that case, the Court specifically stated that it was not making any findings with regard to the potential negligence of the owners of the obstructing vehicles. In this case, it would appear that the U-Haul truck is more akin to the obstructing vehicles than the utility pole, so it is hard to analogize these utility pole cases to the instant case.

Defendants are correct that the courts in these utility pole cases (as well as in cases involving shrubbery, drainage ditches, culverts and trees) uniformly find that "for the careful driver, the placement of these items near the pavement creates no unreasonable danger. Often they simply enhance the beauty of the highway, prevent the flooding of roadways and serve the needs of area residents. This paved roadway, 22 feet in width, is more than adequate for safe public passage, and travel beyond those limits is nether contemplated nor foreseeable."

(Tomassi v. Tanzini, 46 NY2d 91, 97). Based on these cases, defendants argue that there was no duty owed to plaintiffs since these cases hold that the placement of the utility pole in the "public right-of-way did not create an unreasonable hazard to motorists, and therefore defendant was under no duty to place the pole outside of the right-of-way ...." (Guy v. Rochester Gas & Electric, 168 AD2d 965, 965, app. denied, 77 NY2d 808). Service Center further argues "[a]s stated in Kutoglou v. Fogarty, 235 AD2nd 1019 the object, whether another vehicle or a pole in a grassy area off the road 'did not cause the accident at issue' and summary judgment should be granted." The Court does not agree with defendants' points and finds that if plaintiffs are able to prove that the placement of these vehicles was either in the shoulder or so close to the shoulder as to render the shoulder unusable, it would be up to the finder of fact to determine if the vehicles' placement created a hazardous condition and thereby caused the accident.

Service Center also cites to Echorst v. Kaim, 288 AD2d 595 and Hayes v. Malkan, 26 NY2d 295 for the proposition "that as a matter of law liability does not attach and landowners do not owe a duty to users of the public road where obstructing objects were located on private property abutting the public road." (Reply Affirmation of Christopher J. Whitton, Esq. at 2). Those cases, however, merely stand for the general proposition that private property owners may not be held liable for conditions that they place on their own private property (e.g., high shrubs or fences that reduce visibility, etc.) that may or may not contribute to an accident since the private property owners have no duty to users of the public way. As noted by the courts, any other rule would place "an 'intolerable burden' on private property owners who would be required to 'remove every tree, fence, post, mailbox or name sign located on his [or her] property in the vicinity of a public way ....'" (Echorst v. [*10]Kaim, 288 AD2d 595; quoting Hayes v. Malkan, 26 NY2d 295, 298-299).

The Court finds that the holdings regarding the lack of a duty owed to traveling motorists in the utility pole and private property cases are not controlling. Instead, the Court finds that to the extent Service Center parked U-Haul trucks and other vehicles in the area depicted in Exhibit I such that the shoulder was rendered unusable for emergency situations, Service Center may be held responsible if the jury were to find that the dangerous condition was a proximate cause of the accident. It is not for the Court to determine the cause of the accident or to exclude the condition of the premises as a cause where there is testimony that Matthew opted not to use the emergency shoulder because of the location of Service Center's vehicles. Indeed, it may be argued that Service Center has put to use part of a public way to a special use for its own benefit and was thus obligated to maintain it in a reasonably safe condition.

Based on the foregoing, it is hereby

ORDERED, that the motion of ExxonMobil and the Tosco defendants for summary judgment is granted; and it is further

ORDERED, that the motion of U-Haul International Inc. and U-Haul for summary judgment is granted; and it is further

ORDERED, that the motion for summary judgment of Service Center is denied.

The foregoing constitutes the Opinion, Decision, and Order of the Court.

Dated: New City, New York

June 24, 2005_____________________

HON. MARY H. SMITH, J.S.C.

Footnotes

Footnote 1:While plaintiffs have also alleged negligent design with regard to the Service Center, that claim has apparently been withdrawn as plaintiffs have provided no expert disclosure supporting this theory of liability.

Footnote 2:Mr. Collocola testified that despite the fact that U-Haul's literature provides that the Area Field managers are responsible for communicating these display requirements, he never communicated or enforced any display requirements on Service Center. (Collocola Deposition at 63). Furthermore, Mr. Collocola confirmed at his deposition that he gave Service Center user's guides and hook-up procedures, but not the remaining items listed in the dealership agreement as having been provided to Service Center. (Id. at 79). Thus, it is undisputed that Service Center was never given these marketing materials.

Footnote 3:Because the Court is basing its denial of summary judgment on the question of whether or not a dangerous condition was created, the Court is not addressing plaintiffs' additional argument concerning Service Center's alleged violations of zoning codes through the placement of the vehicles in the front set back. Plaintiffs argue that violations of statutes provide a basis for finding that a defendant was negligent. However, Service Center is correct in its analysis that the violation of a statute may only confer liability if the plaintiff falls within the class the regulation or ordinance was intended to protect. The Court is inclined to side with Service Center on this issue because it cannot say that the zoning code cited by plaintiffs was enacted to ensure safe travel along a roadway. Instead, such statutes are enacted to ensure that the development of the property is consistent so that the community character may be maintained (i.e., that it is created for aesthetic rather than safety concerns). The Court also does not agree that liability may attach based on Service Center's alleged violation of the lease which prohibited it from renting or storing vehicles on the premises. The violation of that agreement only entitled the Tosco defendants to terminate the lease and did not create a duty on Service Center to a party not in privity with that agreement.