Johnson v. Goldberger

• Decision Date: 18 September 2001
• Citation: 286 A.D.2d 604,730 N.Y.S.2d 309
• Parties: JESSIE JOHNSON, Respondent,<BR>v.<BR>ROBERT F. GOLDBERGER et al., Appellants.
• Court: New York Supreme Court — Appellate Division

286 A.D.2d 604

730 N.Y.S.2d 309

JESSIE JOHNSON, Respondent,

v.ROBERT F. GOLDBERGER et al., Appellants.

Decided September 18, 2001.

Concur — Nardelli, J. P., Tom, Ellerin, Lerner and Rubin, JJ.

Plaintiff's decedent Willie E. Johnson sustained injury in a collision at the intersection of Givan and Seymour Avenues in Bronx County on August 7, 1993. He was hospitalized for a period of three weeks immediately after the accident and was readmitted approximately one week following his discharge, remaining an inpatient until his death on October 9, 1993. The police report of the accident notes that decedent was unable to relate his version of events due to the injuries he received in the collision. Therefore, the only available account of the accident is that given by the driver of the other vehicle.

It is uncommon to grant summary judgment in a negligence action, even where the facts are uncontradicted (see, Ugarriza v Schmieder, 46 NY2d 471, 475; Andre v Pomeroy, 35 NY2d 361, 366-367). In this case, defendant Hugh Grossett testified that he was two or three car lengths away from the intersection with Seymour Avenue, traveling at 20 to 30 miles an hour, when he first saw the Johnson vehicle. Decedent, driving a Buick sedan, was approximately a car length from Givan Avenue, approaching from the south (Grossett's right). The Buick was moving at a low rate of speed—"just rolling"—but "didn't come to a stop" before proceeding through the intersection. The witness stated that he immediately applied his brakes, leaving 10-to-15-foot skid marks which, he insists, were confined to the roadway on Givan Avenue and did not extend into the intersection.

At the deposition, the motor vehicle accident report completed by defendant Grossett and signed by the witness was marked for identification. While this MV-104 is not included in the record, defendants' attorney read a portion into the record. It states, "I was proceeding along Givan Avenue at about twenty miles per hour and struck the side of the other vehicle when it came rapidly into the intersection ignoring the stop sign on Seymour." Thus, defendant Grossett suggests that he was involved in an unavoidable accident caused by decedent's failure to yield the right of way, as required by Vehicle and Traffic Law § 1142. However, upon closer analysis, the witness's deposition testimony appears to be both evasive and inconsistent with the physical damage to the parties' respective vehicles.

The van owned by defendant Robert Goldberger sustained damage only to the left front fender and the driver's door, according to the diagram contained in the police accident report. The Buick sedan owned by plaintiff Jessie Johnson, however, is depicted as having sustained damage to the driver's side, from the door all the way back to the left rear fender and trunk, including the rear window.

Defendant Grossett's explanation of how damage to the van he was driving was confined to the left front after colliding with a vehicle that allegedly approached from his right is hardly convincing. Grossett maintains that the impact spun the Buick "counterclockwise" through an arc he estimated to be "[m]aybe forty-five" degrees. However, when asked what part of decedent's vehicle the van struck, the witness stated, "I would say the front door, I think," which he then clarified, "Driver's side."

The damage would seem to indicate that decedent was actually completing a left turn onto Seymour Avenue when his automobile was struck at a relatively shallow angle in the driver's door by the left front fender of the van. As it proceeded forward, the van tore along the length of decedent's vehicle, causing the damage along its left side depicted in the police accident report. This scenario is consistent with the witness's testimony that the skid marks were confined to Givan Avenue and did not extend into the intersection with Seymour. Significantly, at one point the witness stated, "I can't say if he [decedent] was turning left or going straight." But later, when pressed about whether decedent had perhaps changed course after proceeding into the intersection, the witness contradicted himself stating, "I can't say he angled his car because he came straight out, straight out."

Defendants' motion seeks summary judgment pursuant to CPLR 3212 dismissing the complaint pursuant to CPLR 3211 on the ground that "there is not a scintilla of evidence in this case that Defendants * * * were in any way responsible for the injuries allegedly sustained by [plaintiff's decedent]." Thus, dismissal is sought on the ground that the complaint, as supplemented by the submissions on the motion, fails to sustain a cause of action (CPLR 3211 [a] [7]).

On appeal from an order denying a motion for summary judgment dismissing the complaint, a "court must view the facts in a light most favorable to the plaintiff" (Crosland v New York City Tr. Auth., 68 NY2d 165, 168 n 2; see also, Betzag v Gulf Oil Corp., 298 NY 358, 364 [plaintiff entitled to every favorable inference reasonably drawn from facts upon review of dismissal of complaint on the law]). Moreover, where the injured plaintiff is unavailable to give his account of the facts, a reduced standard of proof is applicable (Noseworthy v City of New York, 298 NY 76, 80 [decedent]; Schechter v Klanfer, 28 NY2d 228, 233 [amnesiac]; Fasano v State of New York, 113 AD2d 885, 888 [same]). While the cause of death is not stated in the record, the temporal proximity to the accident suggests that death was attributable to injuries sustained in the collision, or that the injuries contributed to the cause of death.

Defendants have not met their burden to eliminate any material issue of fact from this case. Thus, they have failed to establish their entitlement to judgment as a matter of law (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; see, Andersen v Bee Line, 1 NY2d 169).

Tom, J., dissents in a memorandum as follows:

I respectfully dissent.

Plaintiff's decedent, Willie Johnson, while operating an automobile was injured in an accident with a vehicle owned by codefendant Goldberger and driven by codefendant Grossett. The accident occurred in the Bronx at the intersection of Seymour Avenue, which has a stop sign, and Givan Avenue, a through street without a stop sign. Each avenue is two lanes wide, containing a driving lane and a parking lane. Johnson has since died, allegedly as a result of causes unrelated to this accident.

Grossett was deposed in February 2000, providing the only testimony regarding the events of the accident. In relevant part, Grossett's testimony is supported by the police accident report. Grossett testified that he was driving along Givan Avenue, the through street, at about 20 to 30 miles per hour when he saw Johnson approaching the stop sign on Seymour Avenue. Grossett testified that at this time he was about two car lengths from the intersection, Johnson was about one car length from the stop sign, and approximately four car lengths actually separated the cars. Grossett, not facing a stop sign or traffic light, was about to enter the intersection when he...