Abizadeh v Allstate

[*1] Abizadeh v Allstate 2007 NY Slip Op 50681(U) [15 Misc 3d 132(A)] Decided on March 28, 2007 Appellate Term, Second Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 28, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : McCABE, J.P., TANENBAUM and LIPPMAN, JJ
2006-963 N C.

Ramin Abizadeh and ALBER ABIZADEH, Appellants,

against

Allstate and CAROL A. AXEL, Respondents.

Appeal from a judgment of the District Court of Nassau County, Fourth District (Bonnie P. Chaikin, J.), entered January 27, 2006. The judgment, after a nonjury trial, awarded plaintiffs the principal sum of $1,058.01 as against defendant Carol A. Axel, from which plaintiffs appeal on the ground of inadequacy, and dismissed plaintiffs' cause of action against defendant Allstate.

Judgment modified by increasing the award to plaintiffs as against defendant Carol A. Axel to the principal sum of $2,116.02; as so modified, affirmed without costs.

Plaintiffs commenced this small claims action to recover for property damage to their vehicle which occurred when it was struck by defendant Carol A. Axel's vehicle in a parking lot. The record establishes that at about 10:00 P.M., plaintiffs' vehicle
entered the parking lot at the left entrance, that it was driven completely behind Axel's vehicle, that about 75% of plaintiffs' vehicle was in the parking spot to the right and
immediately adjacent to Axel's vehicle when the collision occurred as the driver of Axel's vehicle backed it out from her parking spot, and that at no time prior to the collision did the driver of Axel's vehicle see plaintiffs' vehicle. After a nonjury trial, the District Court found that each driver was equally responsible for the accident and awarded plaintiffs the principal sum of $1,058.01 as against Carol A. Axel. The court also dismissed the cause of action against defendant Allstate. Plaintiffs appeal and contend that the award in their favor as against defendant Axel was inadequate and that dismissal of their cause of action as against Allstate was error.

Since the appeal is from a small claims judgment, our review is limited to determining [*2]whether substantial justice was done "according to the rules and principles of substantive law" (UDCA 1807). A small claims judgment may not be overturned unless "the deviation from substantive law . . . [is] readily apparent and the court's determination clearly erroneous" (Forte v Bielecki, 118 AD2d 620, 621 [1986]).

Vehicle and Traffic Law § 1211 (a) states that "[t]he driver of a vehicle shall not back the same unless such movement can be made with safety and without interfering with other traffic." This standard of care is also applicable to private parking lots (see Vehicle and Traffic Law § 1100; McLaurin v Ryder Truck Rental, 123 AD2d 671 [1986]; People v Murphy, 169 Misc 2d 357 [App Term, 9th & 10th Jud Dists 1996]). The driver of Axel's vehicle testified that she never saw plaintiffs' vehicle prior to the collision, although it had passed fully behind her vehicle. In violation of Vehicle and Traffic Law § 1211 (a), she backed up without ensuring that she could do so safely. Consequently, the determination by the District Court that each driver was equally responsible for the accident did not render substantial justice.

Dismissal of plaintiffs' cause of action against defendant Allstate was proper as said cause of action was premature (see Insurance Law § 3420; Mount Vernon Fire Ins. Co. v NIBA Constr., 195 AD2d 425 [1993]). Plaintiffs' remaining contentions lack merit.

Accordingly, substantial justice requires that the judgment, insofar as appealed from, be modified by increasing the award in favor of plaintiffs as against defendant Carol A. Axel to the principal sum of $2,116.02 (see UDCA 1807).

McCabe, J.P., Tanenbaum and Lippman, JJ., concur.
Decision Date: March 28, 2007