28 Misc. 2d 898
N.Y. Sup. Ct.
1961
Sidney A. Fine, J.

Defendant has moved for summary judgment dismissing the complaint, and plaintiffs have requested summary judgment in their favor. No common-law liability of defendant has been established, since the car, at the time of the accident, was being operated by a thief and not with the consent, express or implied, of defendant. However, plaintiffs allege that the key had been left in the ignition switch, with the doors to the car unlocked and the car unattended. Defendant states that the keys to the car were left, not in the ignition switch, but on the front seat. The facts relating to this issue are peculiarly within the knowledge of defendant and the issue should, therefore, not be summarily determined in favor of defendant (see Woodmere Academy v. Moskowitz, 212 App. Div. 457 ; Shientag, Summary Judgment, p. 83 et seq.). If the key was in fact left in the ignition switch, defendant violated the provisions of subdivision (a) of section 1210 of the Vehicle and Traffic Law which seems to have been enacted for the purpose of preventing injury to person or property as the result of the operation of the car by unauthorized persons (see Report of Joint Legislative Committee on Motor Vehicle Problems, N. Y. Legis. Doc., 1954, No. 36). In the court’s opinion, the purpose of the statute was to protect members of the public from damage caused by the operation of a car by an unauthorized person, and the violation of the statute would therefore confer a cause of action upon anyone damaged as a consequence thereof.

In the present state of the record, defendant is not entitled to dismissal of the complaint. It is to be noted that the complaint also charges that the defendant violated the provisions of an ordinance of New Rochelle, where the car had been left unattended, which prohibits the leaving of the key in the igni*899tion switch of an unattended automobile. If this occurred, the violation would be some evidence of negligence.

Plaintiffs are likewise not entitled to summary judgment, in view of the existence of a triable issue as to whether the key was left in the ignition switch.

Motion and cross motion denied.