Suvalin v. Batista

Appellate Division of the Supreme Court of New York

Suvalin v. Batista

90 A.D.3d 1023, 934 N.Y.2d 856

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

DecidedDecember 27, 2011

StatusPublished

This text of 90 A.D.3d 1023 (Suvalin v. Batista) 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

Suvalin v. Batista, 90 A.D.3d 1023, 934 N.Y.2d 856 (N.Y. Ct. App. 2011).

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Opinion

[1024]*1024The appellant established, prima facie, his entitlement to judgment as a matter of law by presenting evidence that his vehicle had been stolen about three days prior to the subject accident and was being operated without his permission or consent at the time of the accident (see Devellis v Lucci, 266 AD2d 180 [1999]; Delfino v Ranieri, 131 Misc 2d 600 [1986]). In opposition, the respondents failed to raise a triable issue of fact. Even if the appellant violated Vehicle and Traffic Law § 1210 (a) on the day of the theft by leaving the key to the vehicle in its ignition, the lapse of three days between the theft of the vehicle and the injury-producing event vitiated any proximate cause between the appellant’s purported negligence and the accident as a matter of law (see Devellis v Lucci, 266 AD2d 180 [1999]; Delfino v Ranieri, 131 Misc 2d 600 [1986]; cf. Johnson v Manhattan & Bronx Surface Tr. Operating Auth., 71 NY2d 198, 206-207 [1988]).

Accordingly, the Supreme Court should have granted the appellant’s motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against him. Dillon, J.E, Eng, Lott and Austin, JJ., concur.

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[1024]*1024The appellant established, prima facie, his entitlement to judgment as a matter of law by presenting evidence that his vehicle had been stolen about three days prior to the subject accident and was being operated without his permission or consent at the time of the accident (see Devellis v Lucci, 266 AD2d 180 [1999]; Delfino v Ranieri, 131 Misc 2d 600 [1986]). In opposition, the respondents failed to raise a triable issue of fact. Even if the appellant violated Vehicle and Traffic Law § 1210 (a) on the day of the theft by leaving the key to the vehicle in its ignition, the lapse of three days between the theft of the vehicle and the injury-producing event vitiated any proximate cause between the appellant’s purported negligence and the accident as a matter of law (see Devellis v Lucci, 266 AD2d 180 [1999]; Delfino v Ranieri, 131 Misc 2d 600 [1986]; cf. Johnson v Manhattan & Bronx Surface Tr. Operating Auth., 71 NY2d 198, 206-207 [1988]).

Accordingly, the Supreme Court should have granted the appellant’s motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against him. Dillon, J.E, Eng, Lott and Austin, JJ., concur.

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Bluebook (online)

90 A.D.3d 1023, 934 N.Y.2d 856, Counsel Stack Legal Research, https://law.counselstack.com/opinion/suvalin-v-batista-nyappdiv-2011.

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