Clay v. Moss

Appellate Division of the Supreme Court of New York

Clay v. Moss

186 A.D.2d 780, 589 N.Y.S.2d 80, 1992 N.Y. App. Div. LEXIS 12287

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 26, 1992

StatusPublished

Cited by1 cases

This text of 186 A.D.2d 780 (Clay v. Moss) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Clay v. Moss, 186 A.D.2d 780, 589 N.Y.S.2d 80, 1992 N.Y. App. Div. LEXIS 12287 (N.Y. Ct. App. 1992).

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Opinion

— In a negligence action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County (Lane, J.), dated September 28, 1990, which denied her motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, the defendant’s motion is granted, and the complaint is dismissed.

It is not disputed that the defendant’s vehicle was stolen from a public street and that the theft was immediately reported to police. The plaintiff thus concedes that the defendant is not liable for injuries she sustained when she was struck by the defendant’s vehicle, driven by an unapprehended individual, unless the defendant violated Vehicle and Traffic Law § 1210 (see, Vehicle and Traffic Law § 388; see also, Albouyeh v County of Suffolk, 96 AD2d 543, affd 62 NY2d 681).

The defendant’s testimony at her deposition that she did not [781]*781leave her keys in the car on the day it was stolen was sufficient to shift to the plaintiff the burden of coming forward with some proof that the defendant violated Vehicle and Traffic Law § 1210 (see, Zuckerman v City of New York, 49 NY2d 557, 562). The plaintiff failed to do so (see, Albouyeh v County of Suffolk, supra). Therefore, the defendant’s motion should have been granted. Bracken, J. P., Harwood, Miller and Copertino, JJ, concur.

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— In a negligence action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County (Lane, J.), dated September 28, 1990, which denied her motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, the defendant’s motion is granted, and the complaint is dismissed.

It is not disputed that the defendant’s vehicle was stolen from a public street and that the theft was immediately reported to police. The plaintiff thus concedes that the defendant is not liable for injuries she sustained when she was struck by the defendant’s vehicle, driven by an unapprehended individual, unless the defendant violated Vehicle and Traffic Law § 1210 (see, Vehicle and Traffic Law § 388; see also, Albouyeh v County of Suffolk, 96 AD2d 543, affd 62 NY2d 681).

The defendant’s testimony at her deposition that she did not [781]*781leave her keys in the car on the day it was stolen was sufficient to shift to the plaintiff the burden of coming forward with some proof that the defendant violated Vehicle and Traffic Law § 1210 (see, Zuckerman v City of New York, 49 NY2d 557, 562). The plaintiff failed to do so (see, Albouyeh v County of Suffolk, supra). Therefore, the defendant’s motion should have been granted. Bracken, J. P., Harwood, Miller and Copertino, JJ, concur.

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Bluebook (online)

186 A.D.2d 780, 589 N.Y.S.2d 80, 1992 N.Y. App. Div. LEXIS 12287, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clay-v-moss-nyappdiv-1992.

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