## Facts

- Jon Levitt, a pedestrian, was struck in the eye by an egg thrown from a moving automobile, causing blindness in one eye.
- The vehicle was owned by Eugene Peluso and was permissively operated by his minor son, Patrick Peluso; Russell DiBenedetto was a passenger and threw the egg.
- Levitt alleged the injury was an unintended consequence of defendants’ intentional act of throwing eggs from a moving vehicle.
- In a related criminal case, Patrick Peluso and DiBenedetto pleaded guilty to third-degree assault based on recklessly causing physical injury to Levitt.
- Based on those pleas, Levitt had already obtained summary judgment on liability against Patrick Peluso and DiBenedetto.
- Levitt then sought summary judgment imposing vicarious liability on Eugene Peluso solely under New York Vehicle and Traffic Law (VTL) § 388(1).
- Eugene Peluso cross-moved to dismiss the complaint as against him.

## Issues

1. Whether Levitt’s injury “result[ed] from negligence in the use or operation” of the vehicle under VTL § 388(1), permitting vicarious liability against the owner for an egg thrown from the moving car.

## Decision

- Plaintiff’s motion for summary judgment against owner Eugene Peluso was denied.
- Eugene Peluso’s cross-motion to dismiss the complaint as to him was granted.
- The court held the injury did not arise from negligence in the “use or operation” of the vehicle within the meaning of VTL § 388(1).

## Legal Principles

- VTL § 388(1) imposes vicarious liability on a vehicle owner only for injuries resulting from negligence in the vehicle’s permissive “use or operation.”
- A vehicle’s presence may be insufficient to satisfy the statute where the injury is caused by an independent tortious act and the vehicle merely furnishes the location or a means of access.
- Conduct not connected to the vehicle’s transportation function, and not proximately caused by its operation as a motor vehicle, falls outside the scope of “use or operation” for § 388 liability.
- Any extension of § 388 to cover injuries caused by assaultive or similarly independent acts committed from a vehicle is for legislative action, not judicial expansion.

## Conclusion

The court dismissed the claim against the vehicle owner because an egg thrown from a moving car was an independent act not arising from the vehicle’s negligent use or operation under VTL § 388, leaving liability only against the driver and passenger.


Levitt v. Peluso, 168 Misc. 2d 239, 638 N.Y.S.2d 878 (Sup. Ct. Nassau Cnty. 1995)