Upon the foregoing papers, defendants Garage Management Corporation, Garage Management Company, LLC and Ricant Parking, LLC (collectively, "GMC") seek an order, pursuant to CPLR 3212, dismissing plaintiffs' complaint.

Plaintiffs cross-move for summary judgment against GMC on its Vehicle and Traffic Law §1210(a) and common-law negligence claims, and for sanctions pursuant to 22 NYCRR

130-1.1.

This action arises from a motor vehicle accident which occurred on October 23, 2005, at about 10:43 p.m., on the Major Deegan Expressway in Bronx County, between a vehicle operated by defendant Michael Walker ("Walker") and one operated by plaintiff Jessica Baldwin ("Baldwin") in which her infant son, plaintiff Oren Darocher ("Darocher"), was a passenger. It is undisputed that the vehicle operated by Walker was stolen from GMC's garage at 443 East 49th Street in New York County [*2]between 10:00 a.m. and 10:30 a.m. that day.

Plaintiffs commenced this action in February 2006 to recover for personal injuries sustained in the accident. Issue was joined by the GMC defendants on or about March 24, 2006, and a default judgment was granted against Walker on September 29, 2006. Following discovery, plaintiffs filed a Note of Issue on August 16, 2007. The instant motion and cross-motion are now before the court.

In support of the motion GMC argues that even assuming arguendo that GMC's staff was negligent in allowing Walker to leave its garage with the offending vehicle, such negligence was not a proximate cause of the accident which caused plaintiffs' injuries. Specifically, GMC maintains that the negligent or reckless driving by the thief intervened between GMC's negligence and the accident. At best, argues GMC, the theft of the vehicle furnished the occasion for the accident, but not its cause.

In support of the cross-motion and in opposition to the motion, plaintiffs argue that a violation of Vehicle and Traffic Law §1210(a), commonly referred to as the "key in the ignition law," which is in derogation of the common-law, renders an owner or bailee of a vehicle which is stolen liable to third parties for damages occasioned by its use; and that the GMC defendants violated §1210(a). In the latter regard, plaintiffs maintain that GMC's parking facility is a "parking lot" within the meaning of Vehicle and Traffic Law §§1210(a), 1100(a) and 129-b. Finally, plaintiffs maintain that GMC is liable in that it breached its bailment agreement with the owner of the vehicle, thereby causing injury to plaintiffs.

DISCUSSION

The GMC defendants have demonstrated their entitlement to judgment on plaintiffs' common-law negligence claim in that it is undisputed that Walker operated the vehicle without the permission or consent of GMC (see Manning v Brown, 91 NY2d 116, 122 [1997]; Vehicle and Traffic Law §388[1]). Plaintiffs' injuries were the result of the intervening acts of the car thief and, therefore, GMC is not liable at common-law (Epstein v Mediterranean Motors, 109 AD2d 340, 344-345 [1985], affd 66 NY2d 1018 [1985]).

GMC also establishes entitlement to judgment, as a matter of law, on plaintiffs' claim that they violated Vehicle and Traffic Law §1210(a) (Johnson v MABSTOA, 71 NY2d 198, 206-207 [1988]). The statute is inapplicable in this instance, as the vehicle was not stolen

from a "parking lot" as defined by Vehicle and Traffic Law §129-b (Stevens v Calspan Corporation, 292 AD2d 809, 810 [2002]; see also Hernandez v Hagans, 21 AD3d 335, 336-337 [2005]; Surace v Kersten, 278 AD2d 226, 227 [2000]; Manning by Manning v Brown, 232 AD2d 849, 50 [1996], aff'd 91 NY2d 1018 [1985]; Katz v Goodyear Tire & Rubber Co., 143 AD2d 639, 639 [1988]). Thus, the court need not reach movants' attenuation [*3]argument in this regard (Delfino by Delfino v Ranieri, 131 Misc 2d 600, 605 [1986]; see also Devellis v Lucci, 266 AD2d 180, 181 [1999]; Smith v MVAIC, 34 AD2d 629 [1970]).

§1210(a) of the Vehicle and Traffic Law provides that no person "in charge of a motor vehicle shall permit it to stand unattended without first stopping the engine, locking the ignition, [and] removing the key from the vehicle." Pursuant to Vehicle and Traffic Law §1100(a), these provisions of §1210 apply "upon public highways, private roads open to public motor vehicle traffic and any other parking lot." A "parking lot" is defined by section 129-b as "an area . . . of private property near or contiguous to and provided in connection with premises having one or more stores or business establishments, and used by the public as a means of access to and egress from such stores and business establishments and for the parking of motor vehicles." (emphasis supplied).

The owner of the stolen vehicle, Dr. Charles L. O'Cain, affirms that he owned a co-op apartment at 349 East 49th Street and for approximately six years used the defendant's parking establishment at 443 East 49th Street. He describes himself as a "transient customer" who did not have a monthly account. Dr. O'Cain states that he used the garage when he stayed at the co-op apartment, and that he also shopped at local stores and ate in local restaurants. He states: "The defendant's parking establishment is surrounded by dozens, if not hundreds of nearby stores and restaurants . . . including the Beekman Towers which is on the very same block as the defendant's parking establishment."

However, GMC's garage was not an "area . . . of private property . . . provided in connection with premises having one or more stores or businesses," or used as a means of access to and from such businesses (VTL §129-b), as in the case of the parking lot of a strip mall or shopping center. To the contrary, the GMC garage is located in the lower level of a residential building, on a street consisting of residential buildings. Thus, plaintiffs fail to meet their prima facie burden of demonstrating that the location from which the vehicle was stolen falls within the statute's definition of "parking lot" (see Albouyeh v County of Suffolk, 62 NY2d 681, 683 [1984]).

In addition, the vehicle was not left "unattended" as required by section 1210[a]. Rather, the deposition testimony of GMC's witness is that the key to Dr. O'Cain's vehicle was removed from a keylock and given to Mr. Walker in the mistaken belief that Walker was the vehicle's owner (see Banellis v Yarkel, 49 NY2d 882 [1980]; Merchants Ins. Group v Haskins, 11 AD3d 694 [2004]; Poss v Feringa, 241 AD2d 877 [1997]).

Finally, with respect to plaintiffs' theory of liability based upon GMC's breach of its bailment obligations, a promisor under a contract is not liable in tort to non-contracting third-parties for negligent performance of its contractual duty (Church v Callanan Industries, Inc., 99 NY2d 104, 110-111 [2002], citing H.R. Moch Co. v Rensselaer Water Co., 247 NY 160 [1928]). Accordingly, it is

ORDERED, that the motion is granted, the cross-motion is denied and the complaint against the GMC defendants is dismissed.

ENTER, [*4]

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J.S.C.