Rushink v. Gerstheimer

82 A.D.2d 944, 440 N.Y.S.2d 738, 1981 N.Y. App. Div. LEXIS 14675

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 4, 1981
• Status: Published

Opinions

Cross appeals from an order of the Supreme Court at Special Term (Miner, J.), entered October 21,1980 in Sullivan County, which denied both plaintiff’s and defendant’s motions for summary judgment. On August 9, 1978, defendant Mary Jane Gerstheimer, a stenographer employed by the Letchworth Village Developmental Center, drove an automobile owned by her husband, defendant George F. Gerstheimer, to a pharmacy located on the grounds of the Middle-town Psychiatric Center. After parking the automobile in front of the pharmacy, she left it unattended with the keys in the ignition. Moments later, Stephen E. Rushink, a resident patient at the facility, drove away in the vehicle and met his death soon thereafter when it left the road and struck a tree. After issue was joined, plaintiff moved at Special Term for summary judgment contending that there were no triable issues of fact since defendant Mary Jane Gerstheimer violated subdivision (a) of section 1210 of the Vehicle and Traffic Law and that the violation of the statute was the proximate cause of the occurrence. Defendants opposed the motion arguing that subdivision (a) of section 1210 of the Vehicle and Traffic Law is not applicable to the instant case and, assuming it was, that the alleged violation was not the proximate cause of plaintiff’s decedent’s accident. Defendants also moved for summary judgment to dismiss the complaint. Special Term denied both motions and these appeals ensued. Subdivision (a) of section 1210, which prohibits a person in charge of a vehicle from leaving it unattended without removing or hiding the key, was enacted to deter theft and injury from the operation of motor vehicles by unauthorized persons (seeBanellis v Yackel, 69 AD2d 1013, affd 49 NY2d 882; 8 NY Jur 2d, Automobiles, § 628, p 281). In our view, however, its provisions were plainly not designed to protect such unauthorized users from the consequences of their own actions (cf. Imerson v Benway, 12 AD2d 694). That plaintiff’s decedent may not have been capable of forming a larcenous intent is irrelevant to our conclusion that he could not have been within the class of persons the enactment was meant to protect. Of course, redress for wrongs suffered by one under a legal disability may be pursued in a common-law negligence action wholly apart from statutory considerations. The instant complaint is sufficient to support such a cause of action and, since there are obvious factual issues to be resolved in determining defendants’ liability, if any, the motions for summary judgment were properly denied. Order affirmed, without costs. Sweeney, Kane and Casey, JJ., concur.