Roy v. Vilardo

197 A.D.2d 893, 602 N.Y.S.2d 293

Opinion

—Order insofar as appealed from unanimously reversed on the law without costs, motion granted and complaint against defendants Joseph Vilardo and Sharyn Vilardo dismissed. Memorandum: Cynthia Roy (plaintiff) suffered personal injuries when her vehicle was struck by a vehicle backing out of a driveway on property owned by Joseph and Sharyn Vilardo (defendants). Plaintiff alleges that defendants were negligent in failing to keep their driveway free of an accumulation of snow and that such condition foreseeably caused their son to accelerate his vehicle in backing out and into plaintiff’s vehicle. However, "[t]he premises 'merely furnished the condition or occasion for the occurrence of the event rather than one of its causes’ ” (Margolin v Friedman, 43 NY2d 982, 983; see also, Matthews v Scotia-Glenville School Sys., 94 AD2d 912, lv denied 60 NY2d 559). Plaintiff does not allege that defendants had control over the operation of their son’s vehicle. Even if defendants could have foreseen the accident, they did not have the power to control the conduct of the driver of the vehicle emerging from their driveway and they may not, therefore, be held liable for the consequences of the accident (see, Pulka v Edelman, 40 NY2d 781, 784; Matthews v Scotia-Glenville School Sys., supra; Fessler v Brunza, 89 AD2d 640, 641). (Appeal from Order of Supreme Court, Niagara County, Koshian, J.—Summary Judgment.) Present— Callahan, J. P., Balio, Lawton, Boomer and Boehm, JJ.