SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

278.1 

CA 10-00871 

PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ. 

 

EMMA HARTSOCK, INDIVIDUALLY AND AS TEMPORARY 

GUARDIAN OF THE PERSON AND PROPERTY OF ROY A. 

HARTSOCK, PLAINTIFF-APPELLANT, 

V MEMORANDUM AND ORDER

ROBERT T. SCACCIA, ET AL., DEFENDANTS, 

NASH-CAR SALES & SERVICE AND E. DAVID 

NASHWINTER, DEFENDANTS-RESPONDENTS.

(APPEAL NO. 1.) 

 

LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL),

FOR PLAINTIFF-APPELLANT. 

DIXON & HAMILTON, LLP, GETZVILLE (MICHAEL B. DIXON OF COUNSEL), FOR

DEFENDANTS-RESPONDENTS. 

 

Appeal from an order of the Supreme Court, Niagara County (Ralph

A. Boniello, III, J.), entered December 29, 2009. The order granted

the motion of defendants Nash-Car Sales & Service and E. David

Nashwinter for summary judgment dismissing the complaint against them.

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: In appeal No. 1, plaintiff appeals from an order

granting the motion of defendants Nash-Car Sales & Service and E.

David Nashwinter (collectively, Nashwinter defendants) for summary

judgment dismissing the complaint against them. In appeal No. 2,

defendant Robert T. Scaccia appeals from an order granting the motion

of the Nashwinter defendants for summary judgment dismissing Scaccia’s

cross claim against them. 

Plaintiff is the mother and temporary guardian of Roy A.

Hartsock, who was seriously injured in a motor vehicle accident that

occurred while he was a passenger in a vehicle driven by Scaccia. 

Scaccia lost control of the vehicle, which flipped and struck a

utility pole. A police accident report, authored in part by Niagara

County Deputy Sheriff Timothy Callaghan, concluded that Scaccia had

been speeding, had a blood alcohol content of .14% and had two front

tires that were under the “legal limit[]” for tread measurement. 

Callaghan discovered that the Nashwinter defendants inspected the

vehicle three days prior to the accident and determined that it passed

inspection.
-2- 278.1 

CA 10-00871 

With respect to the order in appeal No. 1, we conclude that

Supreme Court properly granted the motion of the Nashwinter defendants

for summary judgment dismissing the complaint against them. Even

assuming, arguendo, that the Nashwinter defendants failed to inspect

Scaccia’s vehicle correctly, we conclude that there is no evidence

establishing that they assumed a duty to plaintiff by “launch[ing] a

force or instrument of harm” (Stiver v Good & Fair Carting & Moving,

Inc., 9 NY3d 253, 257 [internal quotation marks omitted]). Indeed,

there is no evidence that the alleged failure to inspect the tires

correctly created “an unreasonable risk of harm to others” (Church v

Callanan Indus., 99 NY2d 104, 111; see generally Stiver, 9 NY3d at

257).

In appeal No. 2, we conclude that the court properly granted the

motion of the Nashwinter defendants for summary judgment dismissing

Scaccia’s cross claim for indemnification “and/or” contribution

against them. Even assuming, arguendo, that “[a] legal duty

independent of [their] contractual obligations [to Scaccia] may be

imposed by law [on the Nashwinter defendants] as an incident to [that

contractual] relationship” (Sommer v Federal Signal Corp., 79 NY2d

540, 551; see generally Raquet v Braun, 90 NY2d 177, 182-183), we

conclude that the Nashwinter defendants met their initial burden on

the motion, and Scaccia failed to raise a triable issue of fact

whether the condition of the tires was a proximate cause of the

accident. In opposition to the motion, Scaccia submitted the

deposition testimony of Callaghan, who testified that he could not

recall the tire measurements but that the tires were “visibly . . .

unsafe.” Callaghan could not conclude for certain that the tires were

a cause of the accident or whether the accident would have occurred

had the tires been within the legal limit for tread measurement. 

Given the speculative nature of Callaghan’s deposition testimony and

the absence of any other evidence that the tires were under the legal

limit for tread measurement or otherwise a cause of the accident, we

conclude that Scaccia failed to raise a triable issue of fact

sufficient to defeat the motion (see generally Diaz v New York

Downtown Hosp., 99 NY2d 542, 544; Swauger v White, 1 AD3d 918, 919-

920). 

Entered: May 6, 2011 Patricia L. Morgan

Clerk of the Court