| Cook v Schapiro |
| 2009 NY Slip Op 00328 [58 AD3d 664] |
| January 20, 2009 |
| Appellate Division, Second Department |
| Jennifer Cook et al., Respondents, v Elaine Schapiro et al.,Defendants, and Mt. Kisco Chevrolet Cadillac, Inc., Appellant. |
—[*1] Kreindler & Kreindler LLP, New York, N.Y. (James P. Kreindler and Richard M. Garbariniof counsel), for respondents.
In an action, inter alia, to recover damages for negligence and negligent entrustment, thedefendant Mt. Kisco Chevrolet Cadillac, Inc., appeals, as limited by its brief, from so much of anorder of the Supreme Court, Westchester County (Colabella, J.), entered June 30, 2008, asdenied that branch of its motion which was pursuant to CPLR 3211 (a) (7) to dismiss the secondcause of action for failure to state a cause of action.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, thatbranch of the motion of the defendant Mt. Kisco Chevrolet Cadillac, Inc., which was pursuant toCPLR 3211 (a) (7) to dismiss the second cause of action for failure to state a cause of action isconverted to one for summary judgment (see CPLR 3211 [c]), and that branch of themotion is granted.
A motion pursuant to CPLR 3211 (a) (7) to dismiss for failure to state a cause of action maybe treated as a motion for summary judgment where, as here, the parties have charted a coursefor summary judgment, and the questions presented are purely legal, even though formal noticeto do so has not been given (see New Franklin Nursing Home v Novello, 297 AD2d 720[2002]; see also Kulier v Harran Transp. Co., 189 AD2d 803 [1993]). Under thecircumstances of this case, the defendant Mt. Kisco Chevrolet Cadillac, Inc. (hereinafter the cardealership), established its entitlement to [*2]judgment as amatter of law on the second cause of action alleging negligent entrustment.
The plaintiffs' decedent was fatally injured when she was struck by a car which, at the timeof the accident, was owned and operated by the defendant Elaine Schapiro. Two days earlier,Schapiro had purchased the car from the car dealership. The plaintiffs, the decedent's daughterand son, respectively, on behalf of themselves and the decedent's estate, commenced this action,inter alia, to recover damages for negligence and negligent entrustment against Schapiro, the cardealership, the Town of New Castle, and the County of Westchester. The second cause of action,which was styled as one for "NEGLIGENT COMMERCIAL TRANSACTION" and assertedagainst the car dealership alleged, in effect, that the car dealership's salesperson negligentlyentrusted the car to Schapiro despite his knowledge of her "various infirmities." At the time ofthe purchase, the then-80-year-old Schapiro signed a purchase agreement and provided thesalesperson with her valid New York State driver's license, the registration for the Volkswagenmotor vehicle she was replacing, and an insurance card indicating that insurance had been issuedfor the car as a replacement vehicle.
In support of the car dealership's motion, it submitted, inter alia, affidavits of its salespersonand billing agent as well as documentary evidence establishing that the salesperson and billingagent complied with the Vehicle and Traffic Law in timely registering the car and transferringownership to Schapiro.
In opposition, the plaintiffs submitted voluminous police reports from the New Castle PoliceDepartment and supporting witness statements procured in connection with the accident. Onesupplemental police report stated that Schapiro's medical history indicated that she was onseveral medications including aspirin, but that her blood test analysis showed negative results foralcohol, "drugs of abuse," and prescription medication. A witness statement of a store clerkindicated that Schapiro told the clerk immediately before the accident that she was nervousdriving the car, as it was new and unfamiliar to her. None of the submitted documents indicatedthat the car dealership's salesperson had any knowledge or awareness of any physical or mentalimpairment on the part of Schapiro that might render her unfit to operate a motor vehicle.Moreover, the salesperson unequivocally denied any such knowledge or awareness.
To establish a cause of action under a theory of negligent entrustment, "the defendant musteither have some special knowledge concerning a characteristic or condition peculiar to the[person to whom a particular chattel is given] which renders [that person's] use of the chattelunreasonably dangerous . . . or some special knowledge as to a characteristic ordefect peculiar to the chattel which renders it unreasonably dangerous" (Zara v Perzan,185 AD2d 236, 237 [1992] [citations omitted and emphasis added]; see Troncoso vHome Depot, 258 AD2d 644 [1999]; Bischoff v City of New York, NYLJ, June 12,2007, at 23 [Sup Ct, Kings County, Hinds-Radix, J.]; see generally Restatement[Second] of Torts: Negligence § 390). The threshold question, however, in any negligenceaction is whether the defendant owes a legally-recognized duty of care to the plaintiff (seeHamilton v Beretta U.S.A. Corp., 96 NY2d 222, 232 [2001]).
The definition of the existence and scope of an alleged tortfeasor's duty presents a questionof law reserved for the courts (see Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d579, 585 [1994]; Eiseman v State of New York, 70 NY2d 175, 189-190 [1987]). "Adefendant generally has no duty to control the conduct of third persons so as to prevent themfrom harming others, even where as a practical matter defendant can exercise such control"(D'Amico v Christie, 71 NY2d 76, 88 [1987]). At bar, in the absence of any evidencewhatsoever that the car dealership's salesperson possessed special knowledge concerning acharacteristic or condition peculiar to Schapiro that rendered her use of the car unreasonablydangerous, there can be no viable cause of action alleging negligent entrustment. Thus,notwithstanding the tragic nature of the instant accident, but "mindful of the precedential, andconsequential, future effects of [this] ruling" (Lauer v City of New York, 95 NY2d 95,100 [2000]), we decline to impose on an automobile salesperson in a commercial transactionsuch as this a duty to assess the ability or mental or physical fitness of a customer to operate amotor vehicle that is beyond the ken of the average salesperson. Accordingly, the second causeof action should have been dismissed. Rivera, J.P., Santucci, Carni and Dickerson, JJ., concur.