Boyce v. Vazquez

• Citation: 671 N.Y.S.2d 815,249 A.D.2d 724
• Parties: , 1998 N.Y. Slip Op. 3626 Stephen E. BOYCE, Respondent-Appellant, v. James VAZQUEZ et al., Individually and as Partners Doing Business as High Line Auto Brokers, Respondents, and Donna M. Pembridge, as Executor of the Estate of Leonard E. Pembridge, Deceased, Appellant-Respondent.
• Decision Date: 16 April 1998
• Court: New York Supreme Court Appellate Division

Page 815

671 N.Y.S.2d 815

249 A.D.2d 724, 1998 N.Y. Slip Op. 3626

Stephen E. BOYCE, Respondent-Appellant, v. James VAZQUEZ et al., Individually and as Partners Doing Business as High Line Auto Brokers, Respondents and Donna M. Pembridge, as Executor of the Estate of Leonard E Pembridge, Deceased, Appellant-Respondent.

Supreme Court, Appellate Division Third Department.

April 16, 1998.

As Amended June 18, 1998.

O'Connor, Gacioch, Pope & Tait (James C. Gacioch, of counsel), Binghamton, for appellant-respondent.

Fischer & Fischer (Kelly E. Fischer, of counsel), Binghamton, for respondent-appellant.

Before CARDONA, P.J., and MERCURE, WHITE, PETERS and SPAIN, JJ.

WHITE, Justice.

Cross appeals from an order of the Supreme Court (Coutant, J.), entered October 30, 1996 in Broome County, which, inter alia, denied defendant Donna M. Pembridge's motion for summary judgment dismissing the complaint against her.

When plaintiff exited a convenience store around 8:00 P.M. on November 19, 1995 and reentered his 1980 Ford pickup truck, he was unable to start it. He sought assistance from Leonard E. Pembridge (hereinafter decedent) who agreed to tow plaintiff's vehicle so that plaintiff could pop start ¹ it. Decedent proceeded to tow plaintiff's truck onto North Street in the Village of Endicott, Broome County. After going about 50 feet, plaintiff started the truck and gave decedent a prearranged signal that he was under way. Decedent pulled over to the parking lane of North Street and stopped under a street light at a point where both of his passenger side tires were within 12 to 14 inches of the curb. Plaintiff stopped his vehicle behind decedent's but did not disconnect the tow chain since the truck's starter was stuck and he had to disengage it to avoid engine damage. As plaintiff was working on the starter, decedent was standing next to the driver's door of plaintiff's truck's flagging traffic around the stopped vehicles. He had done this for about five minutes when a 1988 Ford Ranger truck owned by defendant High Line Auto Brokers ² and operated by defendant James Vazquez struck the rear of plaintiff's truck, pushing it into decedent's vehicle and pinning plaintiff between them, causing catastrophic injuries to plaintiff's lower extremities.

Thereafter, plaintiff commenced this personal injury action alleging, inter alia, that decedent was negligent in parking his vehicle because he forced plaintiff to stop his truck at a point where a portion of it protruded into the eastbound lane of travel of North Street where it created a substantial and foreseeable risk of harm. On plaintiff's motion, Supreme Court removed from Binghamton City Court a property damage action commenced by High Line and consolidated it with this action. Upon the completion of the pretrial depositions, decedent moved for summary judgment dismissing the complaint and all cross claims or, in the alternative, for leave to interpose a defense based upon CPLR article 16. Besides opposing the motion, plaintiff sought leave to amend his complaint to include an allegation that decedent was negligent in flagging traffic. Supreme Court denied all the motions, prompting appeals by decedent ³ and plaintiff.

To prevail on his motion, decedent was required to come forward with proof establishing, as a matter of law, that he exercised that degree of care which a reasonably prudent person would have exercised while engaged in a towing operation with its known and reasonably foreseeable hazards (see, GTF Mktg. v. Colonial Aluminum Sales, 66 N.Y.2d 965, 967, 498 N.Y.S.2d 786, 489 N.E.2d 755; see also, 8B N.Y. Jur.2d, Automobiles, § 919, at 109; 6A Warren, Negligence in the New York Courts, Collisions of Motor Vehicles, § 9.18[2], at 360-361 [4th ed.] ). To satisfy this burden, decedent relied heavily on plaintiff's deposition testimony wherein he stated that, prior to the impact, his truck was parked behind decedent's vehicle with his right front passenger side wheel touching the curb and his right rear passenger side wheel a few inches away from the curb. He further testified that there was sufficient room for traffic to pass the parked cars without having to go over the center line of North Street. Decedent claims that this proof, corroborated by two independent witnesses, establishes his freedom from negligence as it shows that the vehicles did not obstruct traffic.

Decedent's reliance on plaintiff's original deposition testimony was misplaced because, two weeks prior to the service of his motion, plaintiff, in the manner prescribed by CPLR former 3116(a) (as amended by L.1993, ch. 98, § 7), made changes in his deposition which placed the rear part of his truck in the eastbound lane of travel of North Street, thereby creating an obstruction. Decedent contends that Supreme Court should have disregarded these changes. We disagree since witnesses have the explicit right to change deposition testimony provided that they do so in accordance with CPLR former 3116(a) (compare, Rodriguez v. Jones, 227 A.D.2d 220, 642 N.Y.S.2d 267; see, 6 Weinstein-Korn-Miller, N.Y. Civ Prac § 3116.02). Decedent also contends that the corrections should not be considered because they are not credible. This contention is unavailing since it is not the court's function on a summary judgment motion to assess credibility unless untruths are clearly apparent (see, Ferrante v. American Lung Assn., 90 N.Y.2d 623, 631, 665 N.Y.S.2d 25, 687 N.E.2d 1308; Walts v. Badlam, 214 A.D.2d 875, 876, 625 N.Y.S.2d 104). On the present state of the record, plaintiff's corrections do not appear to be patently untrue as they conform to Vazquez's version of the accident and, thus, we shall leave the credibility issue to the jury.

Our function on a summary judgment motion is to view the evidence in the light most favorable to the party opposing the motion, giving that party the benefit of every reasonable inference, and determine whether there is any triable issue of fact outstanding (see, Matter of Suffolk County Dept. of Social Servs. v. James M., 83 N.Y.2d 178, 182, 608 N.Y.S.2d 940, 630 N.E.2d 636; Simpson v. Simpson, 222 A.D.2d 984, 986, 635 N.Y.S.2d 346). Assessed in this perspective, the record presents conflicting...