Holliday v. Hudson Armored Car & Courier Service, Inc.

• Decision Date: 14 January 2003
• Citation: 753 N.Y.S.2d 470,301 A.D.2d 392
• Court: New York Supreme Court — Appellate Division
• Parties: ORLANDO HOLLIDAY et al., Respondents-Appellants,<BR>v.<BR>HUDSON ARMORED CAR & COURIER SERVICE, INC., Appellant-Respondent, et al., Defendant. (And a Third-Party Action.)<BR>HUDSON ARMORED CAR & COURIER SERVICE, INC., Second Third-Party Plaintiff,<BR>v.<BR>CITY OF NEW YORK DEPARTMENT OF GENERAL SERVICES et al., Second Third-Party Defendants-Respondents.

301 A.D.2d 392

753 N.Y.S.2d 470

ORLANDO HOLLIDAY et al., Respondents-Appellants,

v.HUDSON ARMORED CAR & COURIER SERVICE, INC., Appellant-Respondent, et al., Defendant. (And a Third-Party Action.)

HUDSON ARMORED CAR & COURIER SERVICE, INC., Second Third-Party Plaintiff,

v.CITY OF NEW YORK DEPARTMENT OF GENERAL SERVICES et al., Second Third-Party Defendants-Respondents.

Decided January 14, 2003.

Concur — Andrias, J.P., Rosenberger, Marlow and Gonzalez, JJ.

This is an action by plaintiffs for personal injuries allegedly sustained by plaintiff Orlando Holliday (Holliday), now deceased, as a result of a traffic accident that occurred on April 1, 1986.^[1] On that date, Holliday was working as an inspector for the Taxi and Limousine Commission and was in the process of arresting a taxi driver. Defendant-appellant Hudson Armored Car & Courier Service, Inc. (Hudson) is the owner of the armored truck that was involved in the accident with Holliday. Due to Holliday's demise, and the fact that he was never deposed prior to his death in 1994, the only factual account of the accident comes from the driver of the Hudson vehicle, Charles Cerillo (Cerillo), a Hudson employee.

According to Cerillo's deposition testimony, on the date in question he was driving the armored truck westbound on East 42nd Street, in the right lane. As he approached the taxi line outside Grand Central Station, he observed two cars in the parking lane to his right, alongside the curb. Two men were standing on either side of the car parked in front, and there appeared to be an altercation with the driver sitting in the vehicle. At that point, a police officer standing in the street in front of Cerillo's truck motioned for the cars traveling westbound to stop, and Cerillo complied. Cerillo's truck was stopped for approximately 5 to 10 minutes, during which the two men standing next to the parked car, and the driver of said car, walked eastbound to a second car parked immediately behind the first one. Cerillo testified that this second car was parked alongside his truck, and he lost sight of the men.

Subsequently, the police officer standing in the street to Cerillo's left motioned for him to proceed forward. Cerillo testified that he moved the truck a short distance forward, never moving out of the right lane. At that point, he was directed by the police officer to stop the truck again. Cerillo's supervisor, seated next to him in the truck, also told him to stop. Cerillo was then ordered to pull the truck over to the curb in front of the parked cars, which he did. A police officer subsequently told Cerillo that the door of the parked car had gotten caught in the wheel well of the truck, and that someone had been pinned between the vehicles.

After the accident, Holliday was treated for his injuries at Bellevue Hospital and released the same day. He continued to receive outpatient treatment for chest, shoulder, back and groin injuries. According to a workers' compensation report dated January 11, 1989, Holliday also complained of psychological injuries resulting from the accident, including depression, nervousness, inability to achieve an erection, flashbacks and fearfulness of crowds, being alone and driving. In September 1986, Holliday began seeing a psychiatrist twice a week and was put on antidepression medication.

At the time of the accident, Holliday had suffered from diabetes for six years. According to Holliday, his diabetes was under control prior to the accident. However, by November 1987, he required a two-week hospitalization because his blood sugar level was 700 mg/dl. He was further diagnosed with hypertension, kidney disease, ruptured lining of the stomach, an ulcerated sole of his right foot and a fungal infection of the esophagus. Between 1988 and 1994, Holliday's diabetic condition continued to deteriorate, resulting in renal failure (January 1989), dialysis treatment and retinopathy surgery (February 1991), and an unsuccessful kidney transplant (1994). On December 21, 1994, Holliday died of acute renal failure.

Meanwhile, on April 3, 1989, plaintiffs commenced the instant action for personal injuries against Hudson. Plaintiffs alleged that Hudson was negligent in the operation of the armored truck and that Holliday suffered both physical and psychological injuries as a result. In 1999, plaintiffs moved to amend the complaint to add a cause of action for wrongful death. The motion was denied for failure to provide a medical affidavit.

In October 2001, after the completion of discovery, Hudson moved for summary judgment, arguing that the only evidence of how the accident occurred, Cerillo's deposition testimony, exonerated it of liability. Hudson further argued that it was immune from liability because Cerillo advanced the truck upon the order of the police officer, and the only negligence, if any, was that of the officer. In opposition, plaintiff argued that an unauthenticated police accident report and an unsworn statement of Holliday's coworker raised issues of fact precluding summary judgment. Plaintiff additionally claimed entitlement to a lesser standard of proof under the Noseworthy doctrine (see Noseworthy v City of New York, 298 NY 76), since Holliday was now deceased.

Plaintiffs cross-moved to amend the complaint, in a second attempt to add a wrongful death cause of action. This time, plaintiffs attached an affidavit of a medical doctor who had not examined Holliday, but who had reviewed his medical records, tests and the reports of other doctors who had treated him. Hudson opposed, arguing that the medical doctor's report was incompetent to show that Holliday's death was causally related to the accident, so as to relate back to the original claim. Hudson also argued that in light of the trial-ready posture of the case and plaintiffs' delay, it would be unduly prejudiced by the amendment.

The IAS court denied both Hudson's motion for summary judgment and plaintiffs' cross motion to amend the complaint. With respect to summary judgment, the court held that "there are sufficient facts in dispute about how this accident happened," and a police accident report attached to plaintiffs' opposition papers indicates that "the accident occurred in a particular way, which is not corroborated by [Cerillo]." The court denied plaintiffs' motion to amend on the ground that it would be prejudicial to Hudson to allow amendment of the complaint two weeks prior to the scheduled trial date, adding a new cause of action seeking different damages. The court further cited the unfairness of permitting the amendment where plaintiffs waited until two years after the initial motion was denied before addressing the deficiency, and where Holliday died "so many years ago."

On appeal, Hudson argues that the IAS court erred in denying its motion for summary judgment since the only admissible evidence in the record demonstrates that it was not negligent in causing the accident. Hudson further contends that the evidence submitted by plaintiff in opposition to the motion was both inadmissible and failed to raise an issue of fact requiring a trial. As we agree with both of these contentions, we reverse and grant summary judgment to Hudson.

The proponent of a motion for summary judgment must demonstrate that there are no material issues of fact in dispute and that it is entitled to judgment as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; J.E. v Beth Israel Hosp., 295 AD2d 281, 282). Hudson asserts that it met its burden as movant by virtue of Cerillo's uncontradicted testimony establishing a lack of negligence on its part. In substance, Cerillo testified that he stopped his truck on East 42nd Street at the direction of a police officer;^[2] that he observed a dispute between three men in the vicinity of a parked vehicle; that two of the men escorted the third man to a car parked behind the first car, and parallel to his truck; that the officer then directed him to move his truck forward, which he did, until the officer and his coworker directed him to stop. Most significantly, Cerillo testified unequivocally that his truck never veered outside of the lane in which he was driving. This evidence was sufficient to demonstrate that the Hudson driver merely complied with the directives of a police officer and did not operate his vehicle in a careless manner so as to initiate contact with the plaintiff or the parked car (see Michel v Gressier, 298 AD2d 507).

Although the IAS court apparently concluded that the lack of direct evidence as to how the accident occurred necessarily constitutes a triable issue of fact, established Court of Appeals precedent does not support this view. To establish a claim of negligence based wholly on circumstantial evidence, a plaintiff must demonstrate the existence of "facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred" (Schneider v Kings Highway Hosp. Ctr., 67 NY2d 743, 744). While plaintiff's proof need not exclude every other possible cause of the accident, it "must render those other causes sufficiently `remote' or `technical' to enable the jury to reach its verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence" (id.). In short, plaintiff must prove "that it was `more likely' or `more reasonable' that the alleged injury was caused by the defendant's negligence than by some other agency" (Gayle v City of New York, 92 NY2d 936, 937 [citations omitted]).

The proof submitted by plaintiff in opposition to Hudson's motion did not give rise to an inference of Hudson's negligence. It also suffers from additional flaws. First, plaintiff attached a police report of the accident which states: "At TPO victim was pinned between veh. 1 and veh. 2 when veh. 1 hit open door on veh. 2 hitting victim." Nothing in the record, however, establishes the identity of the officer who made the...