QUINONES v. J & C Car Wash, Inc., appellant.

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Supreme Court, Appellate Division, Second Department, New York.

Raul QUINONES, et al., plaintiffs-respondents, v. Robert NUGENT, et al., defendants-respondents, J & C Car Wash, Inc., appellant.

Decided: February 24, 2009

PETER B. SKELOS, J.P., DAVID S. RITTER, ANITA R. FLORIO, and HOWARD MILLER, JJ. Hammill, O'Brien, Croutier, Dempsey & Pender, P.C., Syosset, N.Y. (Anton Piotroski of counsel), for appellant. Richard T. Lau, Jericho, N.Y. (Gene W. Wiggins of counsel), for plaintiff-respondent Raul Quinones.

In an action, inter alia, to recover damages for personal injuries, the defendant J & C Car Wash, Inc., appeals from an order of the Supreme Court, Kings County (Balter, J.), dated January 16, 2008, which denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.

ORDERED that the order is reversed, on the law, with one bill of costs, and the motion of the defendant J & C Car Wash, Inc., for summary judgment dismissing the complaint and all cross claims insofar as asserted against it is granted.

The plaintiffs allegedly were injured when a vehicle in which they were sitting was struck by a dump truck owned by the defendant Nugent Trucking, Inc., and operated by the defendant Robert Nugent.   Just prior to the accident, the vehicle was serviced by the defendant J & C Car Wash, Inc. (hereinafter J & C).  The plaintiffs alleged that J & C was liable in the happening of the accident because one of its employees negligently parked the vehicle on the street “in a position of danger.”   The Supreme Court denied J & C's motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.   We reverse.

J & C demonstrated its prima facie entitlement to judgment as a matter of law with evidence that the area of the accident identified by the plaintiffs was a legal parking space, and that any parking of the plaintiffs' vehicle in that area merely furnished the condition or occasion for the occurrence of the event, and was not a proximate cause of the plaintiffs' damages (see Wechter v. Kelner, 40 A.D.3d 747, 835 N.Y.S.2d 653;  Szczotka v. Adler, 291 A.D.2d 444, 737 N.Y.S.2d 121).   In opposition, the plaintiffs failed to raise a triable issue of fact (see Szczotka v. Adler, 291 A.D.2d 444, 737 N.Y.S.2d 121).   Thus, J & C's motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it should have been granted.

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