Opinion
02/14782.
Decided January 18, 2007.
Ernest D. Santoro, Esq., P.C., of Counsel, Attorney for Plaintiff, Rochester, NY.
Goldberg Segalla LLP, Scott D. Carlton, Esq., of Counsel, Attorney for Defendant, Rochester, NY.
Defendant moves for summary judgment dismissing plaintiff's complaint.
Plaintiff opposes.
DECISION:
Defendant's motion is granted.
FACTS:
The Court has considered the plaintiff's papers in a light most favorable to him as non-movant for purposes of this motion.
The plaintiff and defendant were each in the business of motorcycle repair and engaged in a joint undertaking to repair Mr. Whitney's motorcycle in the summer of 1999 — each repairing a different part of the motorcycle. After completion, the plaintiff warned the defendant and owner that the defendant had not properly repaired the defendant's part of the vehicle involving the gas line. Nevertheless, the owner after inspection and testing picked up his motorcycle and paid his bill. (Pg. 58-60). He paid defendant, who then gave plaintiff a monetary credit for his share of the work. Several months later about Christmas 1999, the defendant was called by the owner for repair of a gas leak. The plaintiff claims the defendant then retained him solely to pick up the motorcycle in Penfield, New York, and to bring it to the defendant's business in Rochester, New York.
The plaintiff went to Whitney's house where he immediately identified the problem as a gasoline leak and temporarily repaired it. (pg 63). He then, instead of transporting the motorcycle to defendant's business, took it to his house in Scottsville, NY with the intent to deliver it to defendant several days thereafter. Plaintiff then left the motorcycle in his van parked in his yard or driveway.
Plaintiff had previously given a friend implied consent to use his van at any time without his knowledge. That friend took the van, using keys left in the vehicle, without notifying the plaintiff. Before he took the vehicle, however, he removed the motorcycle and placed it in plaintiff's large barn/work area near a furnace (pg. 69,68), even though he smelled gasoline. He never advised the plaintiff of the gasoline smell, or of his placement of the motorcycle in the plaintiff's barn. Thereafter, the plaintiff sent his nephew to light the stove in the barn. Allegedly, due to the leaking gasoline from the motorcycle, the barn caught on fire burning it, and the personal property therein.
Plaintiff seeks to hold defendant liable for the value of the barn and the destroyed personal property for failing to properly repair the customer's motorcycle in the summer of 1999, several months previously.
LAW AND RATIONALE: NO PRIVITY
Defendant's duty of care to the owner of the motorcycle did not extend to the plaintiff under the plaintiff's alleged facts, and, therefore, no actionable privity exists between them. ( Fargo Equip v. Carborundum Co., 103 AD2d 1002, (4th Dept., 1984); Ofsowitz v. Georgie Boy, 231 AD2d 858, (4th Dept., 1996)).
Plaintiff's citation ( Chaikovska v. Earnst Young, 801 NYS2d 864, (4th Dept., 2005)) in which an accountant's negligence extended beyond his client to one in "functional" proximity, (i.e., persons which he knew at the time of the negligent reports would rely on those reports), is not even remotely applicable here.
SUPERCEDING INTERVENING CAUSE
Further, even if there were privity, the plaintiff's knowledge of the prior alleged negligent repair, his conduct in identifying the gasoline leak, and temporarily repairing it, and his and his agent's handling of the motorcycle while in his possession constitutes an intervening and superceding proximate cause as a matter of law, for which the plaintiff cannot be held liable. Plaintiff's conduct was so extraordinary, not foreseeable in the normal course of events, and so far removed from defendant's original repair so as to break the causal connection as a matter of law. (Generally PJI Sec. 2:90; Green v. NY City Housing Authority, 82 AD2d 780, aff'd 55 NY2d 966); Calabrese v. Smetko, 244 AD2d 890, (4th Dept., 1997)).
In addition, a person retained to correct a condition in a joint undertaking and does so negligently cannot claim that negligent condition as a basis of liability to himself. (See Generally Wolfe v. Teele, 223 AD2d 854, (3rd Dept., 1996) — no liability for condition that caused injury while attempting to remedy said condition).
Accordingly, the Court grants the defendant's motion for the reasons and authority stated above.
This shall constitute the decision and order of the Court. The signing of this decision and order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the provisions of that rule regarding entry, filing and notice of entry. However, the filing of the underlying motion papers upon which this motion was made is hereby dispensed with pursuant to CPLR 2220. Attorney for the defendant is directed to enter this Decision/Order without notice and to serve all attorneys of record with a copy of this decision with notice of entry.
SO ORDERED.