A simple fact pattern.  Customer comes to store, is offered valet parking.  Customer gives car to valet driver, who proceeds to strike a pedestrian.  Who may be responsible and how do the liabilities of the store, the valet service, the valet driver interact?

Berger v Rokeach  2017 NY Slip Op 27374  Decided on November 20, 2017  Supreme Court, Kings County  Silber, J. answers these questions with a strong degree of specificity.  The lesson here is how to protect the store.  What might the attorneys have done in the contract process, and how might it have later protected the store?

“On February 17, 2015, Berger, a pedestrian, sustained personal injuries when he was struck by a vehicle owned by defendant Rokeach and operated by defendant Clark C. McNeil (McNeil), a valet parking attendant who was providing valet parking for customers of “Breadberry,” a supermarket at 1689 60th Street in Brooklyn (Breadberry Market). The accident occurred at the intersection of 12th Avenue and 62nd Street in Brooklyn when McNeil was returning Rokeach’s vehicle to the Breadberry Market from the valet parking lot a few blocks away. At the time of the accident, Steven Pittsley (Pittsley), another valet parking attendant, was a passenger in the vehicle driven by McNeil.”

“The court notes that the “alter ego” doctrine has been applied to “pierce the corporate veil” between an individual and a corporation as well as between corporations and between LLCs or a combination thereof: the primary factor is control, and other factors considered include, but none are dispositive: overlap in ownership/officers/ directors; common office space /telephone numbers/personnel; absence of corporate formalities; inadequate capitalization; and payment of obligations interchangeably between the entities.[FN9]

Second, the Appellate Division, Second Department has held that a restaurant that provided valet parking services can be held liable for the negligence of a valet parking company and its valet parking attendants who are alleged to have caused an accident in which a pedestrian was killed, even where the restaurant contracted with an independent contractor which employed the valet parking attendants (see Spadero v Parking Systems Plus, Inc., 113 AD3d 833). Movant’s attempt to distinguish this case from Spadero is erroneous. The court in Spadero clearly states, contrary to counsel for Breadberry’s interpretation, “the submissions of [the restaurant and the parking company] defendants presented triable issues of fact as to whether [the restaurant] could be held liable for the negligence, if any, of [the parking company] (Id. at 835-386).”

“Here, the court finds that Breadberry’s duty with regard to the plaintiff, a third-party, is somewhat different than its duty to Rokeach, its customer. With regard to the plaintiff’, who was [*5]a pedestrian crossing a street, as the entity in control of the supermarket and its parking lot a few blocks away, Breadberry had a duty to exercise reasonable care in maintaining its properties in a reasonably safe condition and to have taken reasonable measures to control the foreseeable conduct of parties on the property with whom they contracted, that is, the parking attendants, to prevent them from either intentionally harming or creating an unreasonable risk of harm to others. This includes both their customers and the pedestrians who were anticipated to walk in the area where Breadberry’s agents or employees were working. (See Di Ponzio v Riordan, 89 NY2d 578 [1997]; Basso v Miller40NY2d 233 (1976); Jaume v Ry Mgt. Co., 2 AD3d 590 [2d Dept 2003]).

This duty arises when there is an ability and opportunity to control the conduct of its contractors, and an awareness of the need to do so. Id. Certainly that is the case here. By contrast, when a child visiting a patient with his parent ran into a patient at a medical facility and knocked her to the ground, the facility demonstrated that it did not have the ability to control the conduct of the child. Hillen v Queens Long Is. Med. Group, P.C., 57 AD3d 946 [2d Dept 2008].

Defendant Breadberry claims that it contracted out its valet parking service, did not pay any attention to the people hired by the subcontractor, and did not supervise, control or in any way involve itself in the work of the valet parking service offered to its customers. This does not make out a prima facie case for dismissal of the plaintiff’s complaint. To assert that the supermarket signed a contract with a parking company and then essentially covered its eyes with a blindfold is not a basis for summary judgment dismissing the complaint. Breadberry was obligated to exercise due care in “the execution of the contract” which, here, refers to selecting a company with, at the minimum, both appropriate insurance and competent drivers. From the documents in the record, it is clear that Royal Parking executed its subcontract with Meg before it executed its contract with Breadberry. Both contracts are on Royal stationery, and each are essentially one paragraph long. The contract between Breadberry and Royal makes no reference to whether Royal could subcontract the work to another company, or if it did, if Breadberry had the right to approve the subcontract. The court notes that McNeil testified at his EBT that his paycheck was from Royal Parking, while his co-worker Pittsley testified that his check was from Meg, creating an inference that these companies may be related.

In any event, in these circumstances, Breadberry is responsible for the negligence of the parking attendants. To be clear, whether or not Breadberry was negligent, and plaintiff claims Breadberry was negligent, the court concludes that Breadberry’s liability is also vicarious, pursuant to the doctrine of respondeat superior.

There are three circumstances which have been held to be exceptions to the general rule, in which a duty of care to a third party [the pedestrian herein] may arise out of a contractual obligation, or the performance thereof, and thereby subject the contracting party [Breadberry] to tort liability. (Church v Callanan Indus, 99 NY2d 104; Fried v Signe Nielsen Landscape Architect, PC, 34 Misc 3d 1212[A], 2012 NY Slip Op 50062[U]).”


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Andrew Lavoott Bluestone

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened…

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened his private law office and took his first legal malpractice case.

Since 1989, Bluestone has become a leader in the New York Plaintiff’s Legal Malpractice bar, handling a wide array of plaintiff’s legal malpractice cases arising from catastrophic personal injury, contracts, patents, commercial litigation, securities, matrimonial and custody issues, medical malpractice, insurance, product liability, real estate, landlord-tenant, foreclosures and has defended attorneys in a limited number of legal malpractice cases.

Bluestone also took an academic role in field, publishing the New York Attorney Malpractice Report from 2002-2004.  He started the “New York Attorney Malpractice Blog” in 2004, where he has published more than 4500 entries.

Mr. Bluestone has written 38 scholarly peer-reviewed articles concerning legal malpractice, many in the Outside Counsel column of the New York Law Journal. He has appeared as an Expert witness in multiple legal malpractice litigations.

Mr. Bluestone is an adjunct professor of law at St. John’s University College of Law, teaching Legal Malpractice.  Mr. Bluestone has argued legal malpractice cases in the Second Circuit, in the New York State Court of Appeals, each of the four New York Appellate Divisions, in all four of  the U.S. District Courts of New York and in Supreme Courts all over the state.  He has also been admitted pro haec vice in the states of Connecticut, New Jersey and Florida and was formally admitted to the US District Court of Connecticut and to its Bankruptcy Court all for legal malpractice matters. He has been retained by U.S. Trustees in legal malpractice cases from Bankruptcy Courts, and has represented municipalities, insurance companies, hedge funds, communications companies and international manufacturing firms. Mr. Bluestone regularly lectures in CLEs on legal malpractice.

Based upon his professional experience Bluestone was named a Diplomate and was Board Certified by the American Board of Professional Liability Attorneys in 2008 in Legal Malpractice. He remains Board Certified.  He was admitted to The Best Lawyers in America from 2012-2019.  He has been featured in Who’s Who in Law since 1993.

In the last years, Mr. Bluestone has been featured for two particularly noteworthy legal malpractice cases.  The first was a settlement of an $11.9 million dollar default legal malpractice case of Yeo v. Kasowitz, Benson, Torres & Friedman which was reported in the NYLJ on August 15, 2016. Most recently, Mr. Bluestone obtained a rare plaintiff’s verdict in a legal malpractice case on behalf of the City of White Plains v. Joseph Maria, reported in the NYLJ on February 14, 2017. It was the sole legal malpractice jury verdict in the State of New York for 2017.

Bluestone has been at the forefront of the development of legal malpractice principles and has contributed case law decisions, writing and lecturing which have been recognized by his peers.  He is regularly mentioned in academic writing, and his past cases are often cited in current legal malpractice decisions. He is recognized for his ample writings on Judiciary Law § 487, a 850 year old statute deriving from England which relates to attorney deceit.