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Gary Kallem and Victoria Kallem  v. Thomas Mandracchia and Jackson Hole Diner Supreme/Queens,
Index No.:  2292/2010
January 9, 2012

Judge Dismisses Claims Against Diner Arrising From Parking-Lot Accident

Justice Sidney F. Strauss has granted summary judgment in favor of the defendant Jackson Hole Diner, and dismissed all claims against it.

In this case, the plaintiff Gary Kallem sought damages arising out of an accident on October 26, 2010, when he was struck by a vehicle owned and operated by the defendant, Thomas Mandracchia, as Mr. Mandracchia was exiting the parking lot of Jackson Hole Diner. The plaintiffs alleged that the diner was negligent in its control of the lot, specifically in failing to properly control the flow of traffic in and out of the lot. Mr. Kallem allegedly sustained very serious injuries, including loss of vision, brain damage, and various fractures in the face, nose, and skull, as well as the right arm. He also claimed tears of the ligaments in the right knee. 

Jackson Hole Diner moved for summary judgment on the grounds that it did not owe the plaintiff any duty, in that the accident occurred outside the lines of its property, and it did not have any duty to control the flow of traffic on the abutting sidewalk, pursuant to either the common law or under any statutory or other authority. The Court agreed.  Justice Strauss concluded that the plaintiff failed to raise a question as to the location of the accident, since Mr. Kallem testified that the accident occurred on the sidewalk, and identified the location in photographs. Further, his wife and driver of the vehicle both confirmed the accident happened on the sidewalk. Thus, it was undisputed that the accident did not occur in the parking lot or the apron cut of the parking lot.

In addition, the Court declined to consider an expert affidavit relied upon by the plaintiffs in opposition to the motion. The Court stated that the expert had not been identified by the plaintiffs until after the note of issue had been filed, was submitted only in response to the motion, and plaintiffs offered no valid excuse for the delay. 

Jackson Hole Diner was represented by Tara C. Fappiano and Aaron M. Schlossberg. 

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