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Sweeney v. Bruckner Plaza Associates

December 18, 2008

DELVIN SWEENEY, PLAINTIFF-APPELLANT,
v.
BRUCKNER PLAZA ASSOCIATES, ET AL., DEFENDANTS-RESPONDENTS, JNS RECOVERY CORP., ET AL., DEFENDANTS.



Judgment, Supreme Court, Bronx County (Patricia Anne Williams, J.), entered September 25, 2006, granting the motion of defendants Bruckner Plaza Associates and Zerega Recovery Corp. for a directed verdict at the close of plaintiff's evidence and dismissing the complaint, reversed, on the law, without costs, the motion denied, the complaint reinstated, and the matter remanded for a new trial.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Saxe, J.P., Catterson, McGuire, Acosta, DeGrasse, JJ.

23941/00

This action was commenced by plaintiff, a quadriplegic, to recover damages for personal injuries sustained as the result of Zerega's towing of plaintiff's customized van from a handicapped space at the parking lot of a shopping center owned and operated by Bruckner. When plaintiff called the police to inform them that his vehicle had been towed, he was instructed to wait at the shopping center. However, plaintiff decided to retrieve the van himself from the yard to which the van had been transported after Zerega's tow truck driver told him that the yard was only two blocks way. Plaintiff claims that as a consequence of retrieving the van he developed pneumonia and suffered tremendous strain on his hands and arms.

Defendants' motion for a directed verdict on the ground that plaintiff failed to make out a prima facie case on his claims for trespass to chattel and negligence was improperly granted. Plaintiff's evidence was sufficient to show that defendants lacked authority to remove plaintiff's vehicle (see New York City Administrative Code § 19-169.1[b] [owner or operator of private parking facility prohibited from towing or causing to be towed vehicles from facility unless a sign is conspicuously posted stating, among other things, the name, address and telephone number of the tow operator]), and that the towing of the vehicle was therefore tortious. We disagree with the trial court that, as a matter of law, the towing did not proximately cause plaintiff's injuries, or that plaintiff's decision to retrieve his van was an intervening act that broke the casual nexus between the towing and plaintiff's injuries.

The issue of "[p]roximate cause is a question of fact for the jury where varying inferences are possible." (Rose v Brown & Williamson Tobacco Corp., 53 AD3d 80, 106 [2008] [internal quotation marks omitted]). Violation of the Administrative Code or the Rules of the City of New York constitutes some evidence of negligence (Cruz v City of New York, 13 AD3d 254 [2004]). "As a general rule, the question of proximate cause is to be decided by the finder of fact, once negligence has been shown" (Equitable Life Assur. Socy. of U.S. v Nico Constr. Co., 245 AD2d 194, 196 [1997). In determining proximate cause where there is an intervening act, liability turns on whether the intervening act was a foreseeable consequence of the defendant's negligence, and, as such, is generally a question for the finder of fact (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]).

Defendants contend that plaintiff's retrieval of his vehicle was an intervening act. Whether this was a "normal or foreseeable consequence of the situation created by the defendant[s'] negligence" (id.), however, is a factual issue, especially in light of the requirements of Administrative Code § 19-169.1(b). It may be foreseeable that a person like plaintiff whose vehicle has been towed, may attempt to retrieve the vehicle, in circumstances like plaintiff was in, particularly when that person is constrained to rely on information provided by the tow operator's driver that the tow yard was only two blocks away, and in the absence of a statutorily required conspicuously posted sign giving, among other things, the address of the tow operator.

A directed verdict is only appropriate where there is no rational process that would lead the trier of fact to find for the nonmoving party (McDermott v Coffee Beanery, Ltd., 9 AD3d 195, 210 [2004]. In considering the motion "the trial court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the non-movant" (Szczerbiak v Pilat, 90 NY2d 553, 556 (1997). We do not find it unreasonable as a matter of law for plaintiff to brave the cold for what he thought was only a few blocks, especially since his specialized, unfoldable, motorized wheelchair and his physical condition made it extremely difficult for him to travel in anything other than a customized vehicle. Thus, it cannot be said as a matter of law that plaintiff's actions were so extraordinary as to break the casual nexus between defendants' actions and plaintiffs resultant injuries (Derdiarian, 51 NY2d at 315).

All concur except Catterson and McGuire, JJ. who dissent in a memorandum by McGuire, J. as follows:

McGUIRE, J. (dissenting)

I disagree with the majority that Supreme Court erred in granting defendants' separate motions at the close of plaintiff's case for dismissal of the causes of action for trespass to chattel and negligence based on events that occurred on December 23, 1997. Accordingly, I respectfully dissent in part.

On December 23, 1997, plaintiff, his teenage brother and a six-year-old boy (whose legal guardian was plaintiff) drove to a shopping center owned by defendant Bruckner. Plaintiff was a wheelchair-bound quadriplegic who drove his specially-equipped, handicap accessible van to the shopping center. The van had neither handicap license plates (see Vehicle and Traffic Law § 404-a) nor a government-issued placard (see Vehicle and Traffic Law § 1203-a) allowing him to park the van in a parking space designated for vehicles with either of those credentials (see Vehicle and Traffic Law § 1203-b ["Parking spaces for the handicapped shall be those parking spaces according to a holder of a handicapped parking permit provided in accordance with section one thousand two hundred three-a or as provided in section four hundred four-a of this chapter"]). However, at approximately 5:55 p.m., plaintiff parked the van in a parking space designated for vehicles with those credentials.

After plaintiff and his companions exited the store at 6:45 p.m., they returned to the parking lot to find the van missing. The group searched the lot for the van for approximately 15 minutes, but did not find it. At approximately 7:00 p.m., plaintiff, using his cell phone, called "911" to report the van stolen. The police dispatcher ...


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