Kelly v Beltran
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Kelly v Beltran 2018 NY Slip Op 34155(U) April 25, 2018 Supreme Court, Westchester County Docket Number: Index No. 68739/2017 Judge: Terry Jane Ruderman Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] WESTCHESTER COUNTY CLERK 04/26/2018 04:39 PM NYSCEF DOC. NO. 22 INDEX NO. 68739/2017 RECEIVED NYSCEF: 04/26/2018 To commence time f~r commence the the statutory statutory time for appeals appeals as of of right right (CPLR (CPLR 5513[a]), 55 13[a]), you you are advised advised to serve serve a copy copy . of this this order, order, with with notice notice of of entry, entry, upon upon all parties. parties. of SUPREME SUPREME COURT COURT OF THE THE STATE STATE OF NEW NEW YORK YORK COUNTY OF WESTCHESTER, WESTCHESTER. COUNTY . . ----------------------------------~------~------_:__·x ---------~-------~--------.---.---:--------~-----~------------------)C JUSTO JUSTO KELLY, KELLY, as Administrator Administrator of of the the Estate Estate of of SHARLENE SHARLENE STINSON, STINSON, '. >. c·oRRECTED C'ORRECTED ._DECISION DECISION and and ORDER ORDER . Sequence Nos. and 2 •. •'\ Sequence Nos.· 1 and Inde)CNo. 68739/2017 . Index No. 68739/2017 Plaintiff, Plaintiff, -against-againstBLASCO BELTRAN, BELTRAN, BLASCO Defendant. Defendant. ____ ·----x --------------------·------------. ____ _._ ----------.------------------------.--------~--------~~-------------)C .. RUDERMAN, RUDERMAN, J. The following following papers papers were were considered considered in inconne~tion withdefendimt's motion (sequence (sequence The conne~tion with defendant's motion . ,;i' ~ . . . - . .. summary judgment dismissing the the complaint, complaint, and and plaintiffs plaintiffs cross-motion cross.motion (sequence2) (sequence 2) for 2) for summary judgment dismissing .. summary judgment in favor plaintiff on the issue summary judgment favor of of plaintiff issue of of liability: liability: . Papers Papers Notice of A-D Notice of Motion, Motion, Affirmation~ Affirmation, Exhibits E)ChibitsA Notice of Cross-Motion; Cross-Motion, Affirmation, Affirmation, Exhibits E)ChibitsA Notice of A "'~C "C . Reply Reply Affirmation Affirmation and Opposition Opposition to Cross-Motion, Cross-Motion, Exhibit Exhibit A Reply Reply Affirmation Affirmation Numbered Numbered I1 2 3 4 On November 23,2015, decedent, Sharle~e Sharle~e Stinson, Stinson, was was killed killed in an On November 23, 2015, plaintiffs plaintiff's d~cedent,_ automobile collision collision when when her her car car was was struck struck by a stolen stolen van van driven driven by a teenager. teenager. The The van, van, automobile which belonged to defendant been stolen which belonged defendant Blasco Blasco Beltran, Beltran, had had been stolen from from Beltran's Beltran's driveway driveway on November 14, 2015. November 2015. Plaintiffbrings}his Plaintiffbrings(this wrongful wrongful death death actionagainst action against defendant defendant as the the o_wner owner of of the the vehicle. vehicle. \ In defendant's judgment.dismissing defendant's motion motion for summary summary judgment dismissing the the complaint, complaint, he submits submits l1 1 of 5 .1 -1 [*FILED: 2] WESTCHESTERr COUNTY CLERK 04/26/2018 04:39 PM NYSCEF DOC. NO. 22 INDEX NO. 68739/2017 RECEIVED NYSCEF: 04/26/2018 '. evidence that that he reported reported the the theft theft to the the police police on November 2015. The The incident incident report report from evidence November 14, 2015. thatdate indicated that that Beltran Beltran told told the the o(ficer officer he had had left left his vehicle vehicle unlocked unlocked in his driveway; driveway; that date indicated the report set ~fkeys report also. also stated stated that that Beltran Beltran told told ~e the officer officer that that he had had lost lost one· one'set of keys to the the vehicle, vehicle' weeks before before the the theft, theft, but but that that he had had thereniaining the remaining key. He relies relies on on case case iaw iaw holding holding that that weeks while while there there is a presumption presumption that that a driver driver was was using using the the vehicle vehicle with with ·the 'the owner's owner's ·express express or implied permission (see Vehicle Law§ implied permission Vehicle and Traffic Traffic Law S 388[1]), 388[1]), "[e]vidence "[e]vidence. that that a vehicle vehicle was was stolen stolen . . the time time of of the the accident accident will will rebut rebut the the presumption of permissive permissive use" use" (Vyrtle (Vyrtle Trucking Trucking Corp. v at the presumption of Browne, AD3d 716, 716, 717 [2d Dept Dept 2012], 2012], citing citing Adamson 283 AD2d AD2d 527 527 [2d. [2d Dept Dept Browne, 93 AD3d Adamson v EVQ!1s, Eva!18, 283 2001]). In Vyrtle Trucking, Trucking, the the defendant's defendant's affidavit affidavit ~d and other other documentary documentary evidence evidence 2001]). a demonstrated that that his vehicle vehicle had had been been stolen stolen and involved involved in a high-speed high-speed chase chase with with the the police police demonstrated prior to the accident accident with with the the plaintiffs plaintiffs vehicle, vehicle, and that that the the unknown unknown driver driver of of the the defendant's defendant's prior \\ the scene scene on foot, establishing establishing the the defendant's defendant's prima prima facie facie entitlement entitlement to judgment car fled the judgment as a matter of of law law... matter However, in the the cross-motion, cross-motion, plaintiff submits evidence evidence that that defendant defendant left left the the key to the the However, plaintiff submits van in the the vehicle. vehicle. He points points to the the supplemental supplemental police police report report dated dated November 24,2015 which November 24~ 2015 which van references the the key found found in the the van's van's ignition ignition after after the the accident, accident, and includes includes a photograph of the the references photograph of the ignition. igniti0n. Also Also appended appended to plaintiff cross-motion is the the sworn sworn statement statement defendant defendant key in the plaintiffss cross-motion 1j . provided the Yonkers Yonkers police December 5, 5,2015, after the the acc~dent, acc,ident, in which which he he stated stated ~at· t~at provided to the police on December 2015, after leaves the the door door to his his van van unlocked unlocked because "neighbor kids" kids" break into cars cars to take take small small he leaves because "neighbor break into \\ things and and change, change, and and he wanted wanted to avoid avoid them them damaging damaging it, and and that that he kept kept a spare spare key key under under things ,· the floor floor mat. mat. Plaintiff Plaintiff reHes relies on c~e c~se law law holding holding that that where where a plain~iff plaintiff proves proves that that the the car thief thief th~ who got into into the the accident accident with with plaintiff plaintifffound the owner's owner's eat cat parked parked on a public public street street with with its who found the2 2 of 5 [*FILED: 3] WESTCHESTER COUNTY CLERK 04/26/2018 04:39 PM NYSCEF DOC. NO. 22 INDEX NO. 68739/2017 RECEIVED NYSCEF: 04/26/2018 keys dangling trunk lock, and and used steal the car, the plaintiff plaintiff was was found to dangling from the trunkjock, used the keys to steal found to . have have made of entitlement entitlement to summary summary judgment against the ~carowner made a a prima prima facie showing showing of judgment against car owner (see Dougherty Dougherty v Kinard, Kinard, 215 AD2d AD2d 521,522 521, 522 [2d Dept Dept 1995]). 1995]). Analysis Analysis While initial moving affidavit, as well well as the police police incident incident report report from While defendant's defendant's initial moving affidavit, November 14, 2015, considered made a prima prima facie showing that the the permissive permissive use November 14,2015, considered alone, alone, made showing that presumption has been been rebutted, rebutted, pursuant pursuant to to the rule rule illustrated illustrated by Vyrtle Trucking presumption Trucking Corp. v Browne (93 AD3d AD3d at 717), additional information information contained both parties' parties' subsequent Browne 717), the additional contained in both subsequent submissions regard to the the presence presence of the van, establish that the the Vyrtle rule does not submissions with with regard of a key in the establish that does not dispose of this matter. matter. dispose of this >'- The negligence of thief who who stole the The rule rule regarding regarding a vehicle vehicle owner's owner's liability liability for the negligence of a thief stole the. vehicle based on Vehicle Traffic Law vehicle is based Vehicle and Traffic Law§S 1210 (a), which which provides provides that that "No person person driving driving or in charge charge of of a motor shallpennit stand motor vehicle vehicle shall permit itto it to stand "No unattended stopping the engine, engine, locking locking the unattended without without first first stopping the ignition, ignition, [and] removing removing vehicle, ... provided, however, however, the provision provision for removing removing the the the key from from the vehicle, ... provided, vehicle shall shall not sight about about key from from the the vehicle not require require the removal removal of of keys keys hidden hidden frorp. from sight the vehicle for convenience. or emergency." vehicle convenience emergency." Consequently, th~ statute statute allows allows the car owner out of of sight sight within within the Consequently, owner to keep keep an ignition ignition key key out vehicle. The The grant grant of summary judgment against the car owner owner in Dougherty vehicle. of summary judgment against Dougherty v Kinard, Kinard, supra, supra, evidence that sight. was based based on the the undisputed undisputed evidence that the key had had been been left in plain plain sight. In contrast, contrast, where where it was was established established on the plaintiffs case at trial owner had had left plaintiffs case trial that that the owner \ hidden within.the within the vehicie, vehicle, the the claim claim against against the the owner owner was was held held to have have properly been the key key hidden properly been the dismissed at the close close of of the the plaintiff's plaintiffs case case (see Banellis v Yackel, Yackel, 49 NY2d 882,883 [1980]). dismissed Banellis v NY2d 882, 883 [1980]). . . ' . (l . . -. - . An evidentiary evidentiary hearing hearing was was required required on the the issues issues of of whether whether the the presumption presumption of of permissive permissive use use An 3 3 of 5 --- [*FILED: 4] WESTCHESTER COUNTY CLERK 04/26/2018 04:39 PM NYSCEF DOC. NO. 22 INDEX NO. 68739/2017 RECEIVED NYSCEF: 04/26/2018 was was rebutted rebutted where, where, despite despite a showing showing that that a vehicle vehicle was stolen stolen at the the time time of of the the accident, accident, the the affidavit of of the the vehicle vehicle owner owner "admitted "admitted that that she left left the car keys keys inin-the vehicle at the the time time of of the the the vehicle affidavit State Farm Farm Mut. Auto. Auto. Ins. Co. vvPernandez, Fernandez, 23 AD3d theft" theft" (Matter (Matter of o/State AD3d 480,481 480,481 [2d Dept Dept 2005]); 2005]); that that decision decision does does not not indicate indicate whether whether the the affidavit affidavit specified specified the the location location of of the the keys in the vehicle. vehicle. Plaintiff Plaintiff observes observes that that defendant defendant has not not been been consistent consistent in the the information information he has has conveyed regarding regarding the the theft. theft. In the the original original incident incident report report dated dated November 14,2015, defendant conveyed November 14, 2015, defendant reportedly possession of reportedly told told the the reporting reporting officer officer that that he was was in possession of one one key key to the the van, van, but but had had lost lost other several several weeks weeks earlier, earlier, while while on December December 5, 2015, 2015, after after the the stolen stolen van van had had been been found found the other with under the with its key key in the the ignition, ignition, defendant defendant swore swore that that he kept kept a spare spare key under the floor floor mat, mat, flatly flatly contradicting his statement statement as initially initially reported. reported. Further, Further, plaintiff plaintiff maintains, maintains, defendant's defendant's failure failure contradicting to make the spare_key his initial make any reference reference to tothe spare.key in his affidavit affidavit submitted submitted with withhis initial moving moving papers papers l ( was was an omission omission that that warrants warrants scrutiny. scrutiny. Based Based on both both the the contradiction contradiction and and the the failure failure to t6 address the the issue issue in his his moving moving papers, papers, plaintiff plaintiff submits submits that that defendant's defendant's credibility credibility is at issue. issue. address . - ~Plaintiff ~Plaintiff further further points points to defendant's defendant's acknowledgment acknowledgment that that he left left the van van door door unlock~d unlocked as \ proof proof that that he allowed allowed the thief's thiefs use of of his his vehicle. vehicle. Defendant Defendant submits submits a further further affidavit affidavit with with his opposition opposition to plaintiff's plaintiff s cross-motion, cross-motion, explaining November 14, 2015, he told police explaining the the apparent apparent contradiction. contradiction. He states states that that on November 14,2015, told the the police officer officerthat that there there was was aa spare spare key underneath underneath the floor floor mat, mat, and denies denies telling telling the the officer officer that that he p.ad lost lost his spare spare key. He suggests suggests that that because because he is a native native Spanish Spanish speaker, speaker, the the police police officer officer may have have misunderstood misunderstood him him when when he was trying trying to explain explain that that he thought thought the the thief thief had had been been may able able to drive drive away away because because of of the the spare spare key hidden hidden under under the the mat. mat. In conclusion, conclusion, he points points out out 4 4 of 5 [*FILED: 5] WESTCHESTER COUNTY CLERK 04/26/2018 04:39 PM NYSCEF DOC. NO. 22 INDEX NO. 68739/2017 RECEIVED NYSCEF: 04/26/2018 sign it. asked to sign that report or asked prepared report the prepared shown the not shown was not that he was the that the Although evidence affirmatively affirmatively contradicting contradictin~ defendant's defendant's assertion assertion that there is no evidence Although there particularly his motion, particulai-ly this motion, on this submissions on key mat, the submissions the mat, under the been under thief had been the thiefhad used by the key used absence of the absence well as the j udginent, as well failure to make assertion in first moving of summary judgment, moving for summary that assertion make that failure defendant's regard to defendant's with regard issue with create an issue report, create any incident report, original incident the original such· statement in the any such'statement been _ has been presumption has use presumption permissive use credibility. Therefore, Therefore, the question of whether the permissive of whether the question credibility. must be collision, must the collision, liability for the avoid liability him to avoid successfully rebutted allow him defendant, so as to allow rebutted by defendant, successfully door van door the van leaving the that leaving argument that left plaintiff's argument regard to plaintiff's with regard Finally, with of fact. Finally, finder of left to the finder of the use of thief s use the thief's that the present case unlocked additional grounds case that concluding in the present grounds for concluding provides additional unlocked provides the supra), the 882, 883, supra), NY2d 882,883, van Yackel (49 NY2d Banellis v Yackel that in Banellis noted that should be noted permissive, it should was permissive, van was additional unlocked as an additional been left had been Court did not left unlocked vehicle had defendant's vehicle that the defendant's the fact that treat the'fact not treat Court permissive use. basis basis to find permissive hereby Accordingly, Accordingly, it is hereby complaint dismissingthe judgment dismissing ORDERED summary judgment the complaint motion for summary defendant's motion that defendant's ORDERED that favor (sequen.ce judgment in his favor summary judgment (sequence 1) and and plaintiff's cross-motion for summary (sequence 2) plaintiff's cross-motion (sequence further are both and it is further denied, and both denied, 9:30 a.m. 4, 2018 at 9:30 June 4,2018 Monday, June ORDERED that appear on Monday, directed to appear parties are directed the parties that the ORDERED Court, 111 Dr. Supreme Court, County Supreme Westchester, County ,- in the Part, Room Room 811, Westchester Conferens~Part, Preliminary Conferens~ the Preliminary conference. York, for conference. New York, Plains, New White Plains, Martin Blvd, White King Jr. Blvd, Luther King Martin Luther the-Court. of the-Court. This constitutes the and Order Order of Decision and the Decision This constitutes New York Dated: White White Plains, Plains, New York Dated: -~ -' April 25':2018 . Apri12S':"2018 5 5 of 5
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