Opinion
20651/2013
06-26-2015
Wanda Moultrie Clarke, Plaintiff, v. Ari Hirt, ANN HIRT, MASSAPEQUA IMPORTS LLC doing business as LEXUS OF ROCKVILLE CENTER, and TOYOTA LEASE TRUST, and CLASSIC VALET PARKING, INC., Defendants.
On May 17, 2013, Plaintiff, Wanda Moultrie Clarke, was involved in a motor vehicle accident with a vehicle operated by the defendant, Ari Hirt, which was owned by and leased through defendant, Toyota Lease Trust. The accident took place in the parking lot of Lexus of Rockville Center located at 700 Sunrise Highway, Rockville Centre, New York. At the time of the accident the plaintiff had brought her vehicle to the dealership for servicing and was walking in the parking lot. The complaint alleges that Ari Hirt, also a customer of the dealership, was driving and backing his motor vehicle out of a parking lot space at the Lexus dealership when he suddenly drove the vehicle into the plaintiff, catching her pocketbook strap on his sideview mirror and dragged the plaintiff onto her vehicle. Plaintiff alleges that as a result of the accident she sustained serious injuries including a labral tear and a partial rotator tear of the left shoulder requiring arthroscopic surgery.
Plaintiff commenced this action by way of a summons without notice and verified complaint filed on November 8, 2013 to recover damages for personal injuries allegedly sustained in the subject motor vehicle accident. An Amended Verified Complaint was served on March 4, 2014. Plaintiff alleges negligence as against defendant Ari Hirt in the operation of his vehicle. The complaint also alleges that Lexus of Rockville Centre failed to provide a valet service to the plaintiff and was negligent in failing to bring plaintiff's car to her at the automobile dealership.
In its supplemental summons and complaint filed July 17, 2014, the plaintiff alleges, in its fourth cause of action, that defendant Classic Valet failed to provide valet service to the plaintiff as it had done in the past and was negligent in failing to bring her car to her at the dealership as a result of which the plaintiff was injured. Counsel asserts that the dealership, Lexus of Rockville Center, negligently entrusted the valet service to Classic Valet Parking, failed to provide the plaintiff with a loaner vehicle, failed to provide valet services to the plaintiff, failed to warn plaintiff that the vehicle next to hers would be moving, and failed to provide personnel to direct traffic in the parking lot.
By decision and order dated November 3, 2014, this court granted Toyota Lease Trust's motion to dismiss the complaint against them on the ground that as a leasing company it is not vicariously liable for negligence of the renter pursuant to the Graves Amendment.
In support of its motion for summary judgment, Classic Valet submits an affirmation from counsel, Matthew E. Markoff; a copy of the pleadings; an affidavit from Julian Marte, President of Classic Valet Parking; a copy of the agreement for Valet services between Classic Valet and Lexus of Rockville Centre; and a copy of plaintiff's verified bill of particulars.
Counsel for Classic Valet asserts that the plaintiff alleges to have sustained personal injuries when she was struck by the motor vehicle operated by Ari Hirt. Counsel asserts that the evidence shows that no employee or agent of Classic Valet was operating the subject vehicle which came into contact with the plaintiff at the time of the alleged accident, and as such, Classic Valet could not be liable for causing the accident.
In his affidavit, Julian Marte, the President of Classic Valet Parking, states that on January 1, 2013, Classic entered into an agreement for Valet Parking Services with Lexus of Rockville Center. He states that pursuant to the agreement, Classic Valet was hired by Lexus of Rockville Centre to perform free valet services for the patrons of the dealership. The valet services are provided only to the extent that the customers wish to utilize them. He states that Classic does not have the responsibility of parking and retrieving all vehicles entering the dealership, rather, the customers may park and retrieve their own vehicle or choose to use the services of the valet. At the date and time of the alleged accident, Classic had one valet attendant present at the dealership as was required under the terms of the agreement. Mr. Marte states that no employee or agent of Classic Valet was operating the vehicle which came into contact with the plaintiff at the time of the alleged accident.
Counsel for Classic Valet asserts that pursuant to Espinal v. Melville Snow Contrs., 98 NY2d 136 [2002], Classic Valet who was under contract to the dealership, did not owe a duty of care to the plaintiff who was not a party to the contract and thus there is no duty running from Classic Valet to the plaintiff. Based on Espinal, counsel asserts that a contractual obligation, standing alone will not give rise to tort liability in favor of a third-party as the Valet did not owe a duty to the plaintiff and therefore could not breach a duty. As such, it is argued Classic Valet could not be liable for the injuries sustained by the plaintiff when she was struck by the vehicle operated by defendant Hirt. Counsel asserts that Classic Valet had no duty of care to the plaintiff and no duties other than those set forth in its agreement with the dealership. Counsel asserts that merely by parking cars for those patrons who wanted to avail themselves of the service, the Valet service did not launch an instrument of harm to the plaintiff. In addition, counsel asserts that Classic does not own, operate, or control the alleged accident location, did not cause the subject accident, and did not own the motor vehicle involved in the accident.
Lexus of Rockville Centre cross-moves for an order dismissing the plaintiff's complaint against it. In support of the cross-motion, defendant submits the affidavit of Keith Drago, the General Manager of Lexus of Rockville Centre. He states that Lexus does not instruct, manage, direct, or control the method by which Classic provides its services. Therefore, they allege that any failure to provide valet services is the sole responsibility of Classic Valet. Mr. Drago states that customers of the dealership are free to either park their own vehicle or use the free valet service. He states that Ari Hirt was not an agent or employee of Lexus of Rockville Centre and Lexus did not own the vehicle that Mr. Hirt was driving. Lexus contends that the sole proximate cause of the accident was the alleged negligent driving of the co-defendant Ari Hirt.
Counsel for Lexus, Craig Lamster, Esq. asserts that Lexus is entitled to summary judgment dismissing the plaintiff's complaint because the failure to provide valet services rests solely with Classic Valet, and moreover, the alleged failure of Lexus to not provide a loaner vehicle, or to provide personnel to direct traffic in the parking lot was not a proximate cause of the accident. Counsel asserts that the dealership merely furnished the condition for the occurrence but that the sole proximate cause was the negligent driving of the defendant Ari Hirt (citing Adler v Lewis, 32 Misc 3d 1238(A) {Sup. Ct. Queens Co. 2011]).
Lexus concedes that as the entity in control of the parking lot it has a duty to take reasonable measures to control the foreseeable conduct of third parties on the property to prevent them from intentionally harming or creating an unreasonable risk of harm to others (citing Jean v Wright, 82 AD3d 1163 [2d Dept. 2003]. Lexus contends it was not on notice that there was a likelihood that Mr. Hirt's driving ability would endanger the safety of a visitor (citing Hoenig v Park Royal Owners, Inc., 249 AD2d 57 [1st Dept. 1998]). Lexus asserts that there is no evidence in the record that Lexus was negligent or that its negligence was a proximate cause of the accident.
In opposition, plaintiff submits the affidavit of Ms. Clarke dated April 13, 2015. In her affidavit Ms. Clark states that she purchased a Lexus from the dealership on March 23, 2010. She states that she was told when she purchased the vehicle that when she brought the car in for service she would be provided with a loaner car and with valet parking. She states that prior to the date of the accident she had brought her vehicle in for servicing on five prior occasions and that on each occasion she was provided with valet parking. She states that on the date of her accident a valet took her vehicle and parked it. When she was told by the service department that there were no loaner cars available she decided to make a new appointment for a later date when loaners were available. The service technician then radioed the valet to bring her car around. She states that she went downstairs to the lobby of the building and waited for he vehicle to be brought over. After waiting for some time she asked the valet where her vehicle was. She stated that he was rude and told her she could get it herself. He told her the keys were on the dashboard and he was too busy to get it. She states that on all previous occasions the valets parked her car on entering and brought it to her when it was time to leave. She states that the valets were under the control of the dealership and that the dealership was responsible for her care and her safety notwithstanding the contract with the third-party valet service. She states that if the valet had brought the vehicle to her the accident would never have happened.
Plaintiff's counsel asserts that the summary judgment motions are premature as discovery has not yet been held. In addition, counsel asserts that there are genuine issues of triable fact as to whether the valets were under the control of the dealership and whether a proximate cause of the accident was the failure of the valet to bring the vehicle to the plaintiff when requested by the service technician.
Upon review and consideration of the motion of Classic Valet, the cross-motion of defendant Lexus of Rockville Centre, the plaintiff's affirmation in opposition, and defendants' respective replies thereto, this Court finds as follows:
The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. The failure of the moving party to make such a prima facie showing requires denial of the motion regardless of the insufficiency of the opposing papers (see Sheppard-Mobley v King, 10 AD3d 7[2d Dept. 2004]). Once the movant's burden is met, the burden shifts to the opposing party to establish the existence of a material issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v New York, 49 NY2d 557[1980]).
The cross-motion of Lexus of Rockville Centre for an order pursuant to CPLR 3212(b) granting summary judgment in favor of said defendant and dismissing the plaintiffs' complaint and all cross-claims is granted. As set forth above, at the time of the accident the plaintiff was walking in the parking lot controlled by Lexus of Rockville Centre when she was struck by the vehicle operated by co-defendant Hirt who was backing out of a parking space. The plaintiff was walking to her car in the parking lot having decided not to wait for the services of the valet to retrieve her vehicle. In her bill of particulars the plaintiff asserts that Lexus was negligent in failing to provide a loaner vehicle, failing to provide valet services to retrieve her vehicle, failing to advise the plaintiff that he car next to hers was about to move from its parking space, failing to place the vehicle in a safe parking spot, failing to safeguard the plaintiff from injury, failing to provide personnel to direct traffic out of the parking lot and failing to foresee such accident and to take the necessary steps to avoid the same.
"A property owner, or one in possession or control of property, has a duty to take reasonable measures to control the foreseeable conduct of third parties on the property to prevent them from intentionally harming or creating an unreasonable risk of harm to others" (Jean v Wright, 82 AD3d 1163[2d Dept. 2011] quoting Jaume v Ry Mgmt. Co., 2 AD3d 590 [2d Dept. 2003]).
This duty arises when there is an ability and opportunity to control such conduct, and the defendant is reasonably aware of the necessity for such control (see Jaume v. Ry Mgmt. Co., supra; D'Amico v Christie, 71 NY2d 76 [1987]; Hillen v Queens Long Is. Med. Group, P.C., 57 AD3d 946 [2d Dept. 2008]; Cutrone v Monarch Holding Corp., 299 AD2d 388 [2d Dept. 2002]). "A property owner cannot be held to a duty to take protective measures unless it is shown that he either knows or has reason to know from past experience "that there is a likelihood of conduct on the part of third persons....which is likely to endanger the safety of the visitor'" (Jean v Wright, supra., quoting Nallan v Helmsley-Spear, Inc., 50 NY2d 507 [1980]). Here, there is no proof in the record to demonstrate that it was foreseeable that the failure of the valet to retrieve the plaintiff's car or the failure of the dealership provide traffic direction in the parking lot would result in a customer being struck by a motor vehicle. There is no evidence that there was a history of accidents in the parking lot such that special personnel would be necessary to direct traffic or that valet parking was mandatory. The valet service was provided as an optional convenience for the customers not as a means of accident prevention. In addition, there is no evidence in the record to show that the conduct of Mr. Hirt in striking the plaintiff should have been anticipated or would result in an accident. Therefore, this Court finds that
Lexus demonstrated, prima facia, that the conduct of Mr. Hirt in striking the plaintiff with his vehicle was not foreseeable.
This Court finds, contrary to the contention of the plaintiff, that Lexus of Rockville Centre demonstrated that there was no basis in the record for them to have had a reason to believe that failing to provide a loaner vehicle, failing to provide valet services to retrieve her vehicle, failing to provide personnel to direct traffic out of the parking lot would result in the plaintiff being struck by another customer's vehicle. Further there is no evidence that the failure to provide valet service to the plaintiff was a proximate cause of the accident. Liability may not be imposed on the dealership as they merely furnished the condition for the occurrence of the event and there was no question of fact raised that the dealership's actions or lack of action was a proximate cause of the accident (see Peralta v Manzo, 74 AD3d 1307 [2d Dept. 2010]; Shatz v Kutshers Country Club, 247 AD2d 375 [2d Dept. 1998]). It is clear that the only possible proximate cause of the accident was Mr. Hirt's conduct when backing his car out of the space. Thus, the dealership demonstrated, prima facie, that it was not liable for the injury sustained by the plaintiff.
With respect to the motion by Classic Valet, this court finds that Classic Valet demonstrated that as a contacting party it is entitled to summary judgment as it owed no legal duty to the plaintiff, an injured third-party. There is no proof in the record that even if it failed to exercise reasonable care in the performance of its duties it launched a force or an instrument of harm or made it more likely that the plaintiff would be struck by an automobile in the parking lot. Classic Valet, by entering into the contract with the dealership, did not assume a duty to supervise the safety of the customers in the parking lot or assume a duty of care to the plaintiff. Even if the valet breached its contractual obligations, it did not have a duty to the plaintiff and therefore, the plaintiff cannot sustain a negligence claim against Classic. The alleged action of Mr. Hirt in backing his car out and striking the plaintiff was not a foreseeable consequence of the action or non action of the valet service or of the dealership. Any action of the valet was remote from the action of the driver (see Hoenig v Park Royal Owners, Inc., 249 AD2d 57 [1st Dept. 1998]). To infer that the valet's alleged failure to retrieve the plaintiff's vehicle was a proximate cause of the subject accident is speculative at best. As stated above, the only possible proximate cause of the accident was Hirt's alleged actions in backing his car out of the space.
In opposition, the plaintiff failed to raise a material question of fact.
The plaintiff's contention that the defendants' motions for summary judgment are premature is without merit. The plaintiff failed to offer any evidentiary basis to suggest that discovery may lead to relevant evidence. The mere hope and speculation that evidence sufficient to defeat the motion might be uncovered during discovery is an insufficient basis upon which to deny the motion (see CPLR 3212[f]; Hanover Ins. Co. v Prakin,81 AD3d 778 [2d Dept. 2011]; Essex Ins. Co. v Michael Cunningham Carpentry, 74 AD3d 733 [2d dept. 2010]]; Peerless Ins. Co. v Micro Fibertek, Inc., 67 AD3d 978 [2d Dept. 2009]; Gross v Marc, 2 AD3d 681 [2d Dept. 2003]).
Accordingly, for all of the above-stated reasons it is hereby,
ORDERED, that the motion by defendant CLASSIC VALET PARKING, INC. and the cross-motion of MASSAPEQUA IMPORTS LLC doing business as LEXUS OF ROCKVILLE CENTRE, for summary judgment dismissing the complaint and all cross-claims against are granted.
Dated: June 26, 2015
Long Island City, NY
______________________________
ROBERT J. MCDONALD
J.S.C.