People v Zywiczynski

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[*1] People v Zywiczynski 2014 NY Slip Op 50584(U) Decided on April 15, 2014 Just Ct Of The Town Of Lockport, Niagara County Tilney Jr., 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 15, 2014
Just Ct of the Town of Lockport, Niagara County

People of the State of New York, Plaintiff,


Ethan D. Zywiczynski, Defendant.





Leonard G. Tilney Jr., J.

The People presented one witness, Niagara County Sheriff Deputy Patrick Tighe, who has 4 years of police duty, regularly assigned to Vehicle & Traffic matters. He is a graduate of Niagara County Community College Law Enforcement Academy. On February 6, 2014, he pulled into the parking lot at the Crosby Gas Station located at 4531 Lake Avenue in the Town of Lockport. He noticed an unattended motor vehicle with the engine running parked at the Convenient Store part of the gas station. He went to the car and waited for its owner to return. Eventually, the Defendant was identified by Deputy Tighe when he returned to his motor vehicle. Tighe indicates that the engine was running, the keys were in the ignition, and the Defendant was in the Crosby Gas Station Store. He explained to the Defendant that the motor vehicle was left unattended and requested his License, Registration, and insurance information from him. On cross Tighe maintains that he saw keys in the ignition when he went to the Defendant's motor vehicle at least two (2) times.

The Defendant took the stand on his own behalf. He was on his way home and pulled into the Crosby parking lot, got out of his truck, took the keys out of the ignition, left the motor vehicle running, and went in to purchase a Mountain Dew. As he went back to get into this motor [*2]vehicle, Deputy Tighe pulled up and went to him. Tighe told the Defendant that there is a problem with car thefts if you leave your motor vehicle running. Zywiczynski maintains he took the keys out of the ignition and locked the motor vehicle but left it running. The motor vehicle is a 1969 truck and the keys can easily be removed while leaving the motor vehicle running. The young deputy may not have known this fact but this Court has driven many 1960's automobiles with what we would now call a present day defect.


The People maintain a violation of §1210(A) of the Vehicle & Traffic Law in that the Defendant left his motor vehicle unattended and running while he was parked in a local gasoline station parking lot. The People cite Zwerdling v Gillis, 99 AD2d 565 (3d Dept. — 1984) on the applicability of § 1210 of the Vehicle & Traffic Law to private parking lots.

The Defendant maintains that the motor vehicle was running, the key was out of the ignition, and the doors were locked while he ran into the Mini Market Store momentarily to purchase items.



§ 1210. Unattended motor vehicle

"(a) No person driving or in charge of a motor vehicle shall permit it to stand unattended without first stopping the engine, locking the ignition, removing the key from the vehicle, and effectively setting the brake thereon and, when standing upon any grade, turning the front wheels to the curb or side of the highway, provided, however, the provision for removing the key from the vehicle shall not require the removal of keys hidden from sight about the vehicle for convenience or emergency."

§1100. Provisions of title refer to vehicles upon highway; exceptions

"(a) The provisions of this title apply upon public highways, private roads open to public motor vehicle traffic and any other parking lot, except where a different place is specifically referred to in a given section."

§ 129-b. Parking lot

"Any area or areas of private property near or contiguous to and provided in connection with premises having one or more stores or business establishments, and used by the public as a means of access to and egress from such stores and business establishments and for the parking of motor vehicles of customers and patrons of such stores and business establishments."


The Court credits both witnesses as their testimony, but for the keys, verifies each other. Deputy Tighe saw an unattended motor vehicle with the motor running parked at the Crosby Parking Lot. Defendant admits that he left his motor vehicle running and went into the Crosby Store for a purchase. The Peoples' position is unsupported by the Gillis Case which holds that a private parking lot cannot be construed as a highway or private road open to the public. However, that case has been superseded by Statute §129-b of the Vehicle & Traffic Law and its interpretation by Calderon v Gennoy, 20 Misc 3d 1135 (2008). The Calderon Court calls § 1210(a) the "key in ignition statute". This Court respectful disagrees.Even if this Court credits Zywiczynski testimony that there was no key in the ignition, it makes no difference in the verdict. This Court believes whether or not the keys were in the ignition is academic as VTL Section 1210 requires the driver or person in charge of the motor vehicle not to permit it to stand unattended without doing at least four things: Stop the engine; Lock the ignition; remove the key from the vehicle and Set the brake. The Defendant did not stop the engine or lock the ignition. This Court also believes that VTL Section 1210, perhaps not in this case, but in future cases, has not caught up with the technology of science. Many of our cars today start remotely with no keys in the ignition, start by push button, or even voice recognition. The Legislative intent for this Statute and its corresponding civil liability was to prevent automobiles from being stolen and then being involved in automobile accidents causing personal injury and property damage. The Legislature should review and revisit this section of law and rethink the necessity of keys.

This Court holds however, that the parking lot at the Crosby Convenient Store/Gas Station is a public highway and §1210(a) is applicable. Accordingly, the Court finds the Defendant GUILTY of violating that Section and imposes a fine of $107.00 with a $93.00 surcharge. The Defendant shall have thirty (30) days in which to pay the $200.00.

Dated: April 15, 2014___________________________Hon. Leonard G. Tilney, Jr., Lockport Town Justice

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