Horowitz v. Kevah Konner, Inc.

• Decision Date: 22 March 1979
• Citation: 414 N.Y.S.2d 540,67 A.D.2d 38
• Parties: Martha HOROWITZ, Plaintiff-Appellant, v. KEVAH KONNER, INC., and Arthur Bowen, Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 540

414 N.Y.S.2d 540

67 A.D.2d 38

Martha HOROWITZ, Plaintiff-Appellant, v. KEVAH KONNER, INC., and Arthur Bowen, Defendants-Respondents.

Supreme Court, Appellate Division, First Department.

March 22, 1979.

Irene A. Siegel, New York City, of counsel (Julius Siegel, New York City, atty.), for plaintiff-appellant.

Michael Hirsch, of counsel (Irving Miness, New York City, atty.), for defendants-respondents.

Before MURPHY, P. J., and KUPFERMAN, BIRNS, EVANS and LUPIANO, JJ.

MURPHY, Presiding Justice:

Plaintiff Horowitz submitted an affidavit of merit in support of her motion for summary judgment in this negligence action. In that affidavit, plaintiff states that on December 20, 1975, she was a passenger in a chartered bus owned by defendant Kevah Konner, Inc., and operated by defendant Bowen. At about 10:45 p. m., the bus was proceeding in a southerly direction on the New York State Thruway. At that time, the Thruway was covered with snow. The plaintiff avers that the bus suddenly left the extreme right hand lane, crossed the other southerly lanes and turned over in the center mall area. Plaintiff emphasizes that defendant Bowen later pled guilty to driving the bus at a speed greater than was reasonable and prudent under the snowy conditions. A certificate of conviction under Section 1180(a) of the Vehicle and Traffic Law is also included in the moving papers.

The doctrine of Res ipsa loquitur must be applied under the facts of this case for two distinct reasons. First of all, since the plaintiff was a passenger in a carrier, it was incumbent upon the carrier to come forward with a reasonable explanation for the occurrence (Plumb v. Richmond Light & R. R. Co., 233 N.Y. 288, 289, 135 N.E. 849). Secondly, in view of the fact that the bus overturned in the center mall area, it was necessary for the defendants to advance a satisfactory explanation for the incident. (Pfaffenbach v. White Plains Exp. Corp., 17 N.Y.2d 132, 135, 269 N.Y.S.2d 115, 216 N.E.2d 324). In addition, defendant Bowen's plea of guilty was an admission suggesting that he was operating the bus in a negligent manner. (Ando v. Woodberry, 8 N.Y.2d 165, 203 N.Y.S.2d 74, 168 N.E.2d 520.) Hence, the plaintiff established her Prima facie case through (1) the evidentiary value of her own affidavit, (2) the operability of the doctrine of Res ipsa loquitur, and (3) defendant Bowen's admission as found in his plea of guilty.

The opponent of a properly made motion for summary judgment must present evidentiary facts sufficient to raise a triable issue of fact. (Freedman v. Chemical Construction Corporation, 43 N.Y.2d 260, 264, 401 N.Y.S.2d 176, 372 N.E.2d 12). As is noted in the dissenting opinion, an affidavit was not submitted by defendant Bowen because he could not be located by defense counsel. The latter stresses that

". . . this motion had already been scheduled twice before and, through the courtesy of the plaintiff's attorney, it was adjourned to the current date. In obtaining the consent adjournments, this office, at counsel's request, agreed not to request any further adjournments. Therefore, under the circumstances, in lieu of an affidavit by Mr. Bowen, I am herewith submitting a copy of the recorded statement taken by a Fireman's Fund investigator on February 3, 1976. . . ."

In his affirmation in opposition, defense counsel does not request that plaintiff's motion for summary judgment be denied until the trial of this action in order to afford him the opportunity of locating defendant Bowen. Undoubtedly, counsel did not make this request since, under the admitted terms of his stipulation with plaintiff's attorney, he agreed that no further adjournments would be had. Thus, in both his affirmation and his brief, defense counsel addresses himself to the merits of the evidence presented. Even if defense counsel had not entered into the subject stipulation, the defendant is under an obligation to maintain communication with his attorney and insurer in this proceeding. Plaintiff should not be forced to wait until trial simply because the defendant chooses to secrete himself and to default in the defense of this action. Of course, the hearsay affirmation submitted by defense counsel has no evidentiary significance (Stara Plumbing & Heating Co., Inc. v. Peter K. Kelly Contracting Corp., 61 A.D.2d 950, 403 N.Y.S.2d 233).

The remaining evidentiary question is whether this Court should consider the transcript of an alleged conversation between an insurance investigator and defendant Bowen before the latter's disappearance. The transcript itself is unsigned. The investigator has not submitted an affidavit in opposition to the motion nor has he in any way certified the correctness of the transcript. There is no certification from the transcriber that the transcription of the conversation is accurate. There is no indication in the record that Bowen was under oath at the time the statement was given. Therefore, it may be fairly concluded that the statement, if actually given by Bowen, was not given under oath.

Since the insurance investigator did not confirm the accuracy, authenticity and reliability of the transcript, it can not be considered on this motion for summary judgment. (Richardson on Evidence, 10th ed. §§ 635-643; cf. Greenberg v. Manlon Realty, Inc., 43 A.D.2d 968, 349 N.Y.S.2d 329). Even if the investigator had submitted an affidavit, the transcript must be disregarded for it is not signed (Pathmark Graphics, Inc. v. J. M. Fields, Inc., 53 A.D.2d 531, 384 N.Y.S.2d 177 mot. to dism. app. granted 40 N.Y.2d 1093) nor verified (cf. Hayduk v. Mahoney Motor Sales, Inc., 18 A.D.2d 703, 236 N.Y.S.2d 362). In granting partial summary judgment in Pathmark, this Court (including the dissenters herein) found that ". . . Unsigned depositions and general denials in the pleadings do not suffice as proof requisite to defeat a motion for summary judgment." The dissent now urges that we treat the unsigned, unverified, uncertified transcript in this proceeding differently from the unsigned depositions in Pathmark. We disagree and find that the principle enunciated in Pathmark, a non-negligence case, to be equally controlling in this negligence proceeding. For that reason, we do not assign any evidentiary significance to the transcript.

Ordinarily, Res ipsa loquitur satisfies a plaintiff's duty of producing evidence sufficient to go to the jury. (Foltis, Inc. v. City of New York, 287 N.Y. 108, 120, 38 N.E.2d 455). That fact in and of itself does not normally warrant nor require the granting of summary judgment to a plaintiff (Sacramona v. Scalia, 36 A.D.2d 942, 943, 321 N.Y.S.2d 632). However, the Court of Appeals noted that there may be cases where plaintiff's Prima facie proof is so convincing that the inference of negligence arising therefrom is inescapable if not rebutted by other evidence. (Foltis, Inc. v. City of New York, 287 N.Y. 108, 121, 38 N.E.2d 455). Subsequently, the Courts have granted summary judgment in certain Res ipsa situations where the particular defendant totally failed to rebut the inescapable inference of negligence. (Colonial Sand & Stone Co., Inc. v. Tracey Towing Line, Inc.,16 A.D.2d 645, 227 N.Y.S.2d 38; Richard Equipment Corp. v. Manhattan Industrial Contracting Co., Inc., 9 A.D.2d 691, 191 N.Y.S.2d 587; Baroff v. Becker, 197 F.Supp. 9; Silvern v. Barbagallo, 195 N.Y.S.2d 32; See generally, 97 A.L.R.2d 522, Res Ipsa Loquitur Directing Verdict). In this proceeding, the defendants have totally failed to come forward with any competent proof to rebut the inescapable inference, established under the doctrine of Res ipsa, that their negligence caused the plaintiff's injuries. In addition to the inescapable inference to be drawn under that doctrine, plaintiff has come forward with independent evidence of defendants' negligence, i. e., Bowen's plea of guilty.

On the basis of the unchallenged evidence submitted by plaintiff, the order of the Supreme Court, New York County, entered September 5, 1978, denying plaintiff's motion for summary judgment, should be reversed, on the law, the motion for partial summary judgment against both defendants should be granted on the issue of liability and the matter should be remanded for an assessment of damage, with costs.

Order, Supreme Court, New York County, entered on September 5, 1978, reversed, on the law, the motion for partial summary judgment against both defendants granted on the issue of liability and the matter remanded for an assessment of damages. Appellant shall recover of respondents $75 costs and disbursements of this appeal.

All concur except BIRNS and LUPIANO, JJ., who dissent in an opinion by LUPIANO, J LUPIANO, Justice (dissenting):

Plaintiff, a passenger in a bus owned by defendant Kevah Konner, Inc. and operated by defendant Arthur Bowen, was injured when the bus, proceeding to New York City on the New York State Thruway, skidded and overturned. The accident occurred on December 20, 1975, at approximately 10:45 p. m. in the vicinity of Newburgh. There was snow on the Thruway, and the bus, proceeding at 20 to 25 miles per hour on a downgrade (described as median) in the extreme right lane, suddenly swerved to the left, crossed all the southerly lanes and overturned in the center mall. The operator of the bus subsequently pleaded guilty to violation of Vehicle and Traffic Law § 1180(a) which provides:

"No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing."

Plaintiff, in moving for summary judgment after joinder of issue, relies on the aforesaid. Defendants, in opposition, submit an affidavit of their counsel in which he declares:

"This office has appeared for the defendants named, pursuant to a contractual obligation of Fireman's Fund Insurance Company to Kevah Konner, Inc. This matter was thoroughly investigated by Fireman's Fund and, at the time...