Luciano v. Islam
| Decision Date | 17 May 2022 |
| Docket Number | Index No. 25290/2020E |
| Parties | Jose LUCIANO, Plaintiff, v. MD S ISLAM, YZN Taxi Inc., Defendants. |
| Court | New York Supreme Court |
Plaintiff Jose Luciano, Craig D. Rosenbaum, Esq. (cr@rosenbaumnylaw.com), Mark W. Walsh, Esq. (mw@rosenbaumnylaw.com), Rosenbaum & Rosenbaum, P.C., 100 Wall Street, 15th Floor, New York, NY 10005, (212) 514-5007
Defendants MD S. Islam and YZN Taxi Inc., Rory Mulholland, Esq. (rmulholland@abramslaw.com), Paul J. Sagiv, Esq. (psagiv@abramslaw.com), Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Wolf LLP, 1 Metrotech Center, Suite 1701, Brooklyn, NY 11201, (718) 215-5300
Defendant Hafiz M. Akram, Nancy L. Isserlis, Esq. (nisserlis@herefordinsurance.com), William J. Cariello, III, Esq. (wcariello@herefordinsurance.com), Law Office of Nancy Isserlis, 36-01 43rd Avenue, Long Island City, NY 11101, (718) 361-1514
Defendant Joseph Alexander, Eugene Haber, Esq. (eugene@coberthaber.com), David C. Haber, Esq. (david@coberthaber.com), Cobert Haber & Haber, 200 Garden City Plaza, Suite 103, Garden City, NY 11530 (516) 248-7844
Defendant Igor Shevelchinksy, Natalie Corriss, Esq. (ncorriss@geico.com), Law Office of Dennis C. Bartling, 2 Huntington Quadrangle, Suite 2N01, Melville, NY 11747, (516) 229-4401
In accordance with CPLR 2219(a), the decision herein is made upon consideration of all papers filed by the parties in NYSCEF in support of and in opposition to defendants JOSEPH C. ALEXANDER's ("Alexander ") and IGOR SHEVELCHINKSY's ("Shevelchinksy ")1 respective motion (Seq. Nos. 2 and 3) and defendant HAFIZ AKRAM's ("Akram ") cross-motion (Seq. No. 3) each seeking an order, pursuant to CPLR 3212, granting them summary judgment dismissing the complaint and any and all cross-claims asserted against them. For the reasons discussed below, Alexander's motion under Motion Sequence 2 is DENIED, with leave to renew ; Shevelchinksy's motion under Motion Sequence 3 is GRANTED ; and Akram's cross-motion under Motion Sequence 3 is GRANTED .
This is a personal-injury action arising from two motor-vehicle accidents, each involving multiple vehicles, occurring on January 25, 2019, at approximately 8:00 p.m., on the southbound Harlem River Drive, at or near its exit with Dyckman Street, in Manhattan, New York (the "Accident ").
Uniform Trial Court Rule 202.8-g(a) provides that, "[u]pon any motion for summary judgment ... there shall be annexed to the notice of motion a separate, short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried." Alexander filed his motion on May 14, 2021, well after Rule 202.8-g became effective on February 1, 2021 [Admin. Order of the Chief Admin. Judge of the Court - No. AO/270/2020]. Yet, Alexander failed to submit a Statement of Material Facts in support of his motion.
Alexander's failure to submit a Statement of Material Facts requires that his motion be DENIED . See De Leon v. Kagansky , 2021 WL 4537869, at *1 (N.Y. Sup. Ct. Kings Cty. Sept. 30, 2021) (citing Amos Fin. LLC v. Crapanzano , 73 Misc. 3d 448, 451-55, 154 N.Y.S.3d 366 (N.Y. Sup. Ct. Rockland Cty. 2021) ). Such denial, however, is without prejudice to Alexander's timely renewal upon proper papers complying with all applicable rules, including, of course, Rule 202.8-g(a). See id. ; Medallion Bank v. Chopper Taxi Inc. , 2021 WL 5861971, at *2 (N.Y. Sup. Ct. N.Y. Cty. Dec. 10, 2021).
Although the Court grants Alexander leave to renew his motion, renewal will be unnecessary. Below, the Court searches the record on Shevelchinksy's motion and, based on the evidence submitted in connection therewith, grants Alexander summary judgment dismissing the complaint and any cross-claims against him.
In support of his motion, Shevelchinksy submits his affidavit; an attorney affirmation; and a Statement of Material Facts. In lieu of submitting copies of the pleadings, Shevelchinksy provides the Court with references to their respective docket numbers on NYSCEF, as permitted under CPLR 2214(c).
Plaintiff JOSE LUCIANO ("Plaintiff "), Alexander, Akram, and defendants MD S. ISLAM ("Islam ") and YZN TAXI INC. ("YZN "; and, together with Islam, the "YZN Defendants ") each submit opposition to the motion.2 Plaintiff submits his affidavit and an attorney affirmation. Alexander submits his affidavit, an attorney affirmation, and an uncertified copy of the police accident report. Akram submits only an attorney affirmation, but that affirmation references and relies upon Akram's affidavit submitted in support of his cross-motion, as fully addressed below. Finally, the YZN Defendants submit an attorney affirmation and an uncertified copy of Islam's MV-104 report.
Initially, because neither the police accident report nor the MV-104 report is certified, neither is admissible. See Yassin v. Blackman , 188 A.D.3d 62, 65-67, 131 N.Y.S.3d 53 (2d Dept. 2020) ; Coleman v. Maclas , 61 A.D.3d 569, 569, 877 N.Y.S.2d 297 (1st Dept. 2009) ; Rue v. Stokes , 191 A.D.2d 245, 246-47, 594 N.Y.S.2d 749 (1st Dept. 1993). However, because the police accident report is submitted in opposition to the motion and is not the only evidence relied on by Alexander, the Court may nonetheless consider it in deciding the motion. See Long v. Taida Orchids, Inc. , 117 A.D.3d 624, 625, 986 N.Y.S.2d 469 (1st Dept. 2014) ().
The police accident report describes the Accident as follows:
[Akram] stated that he slipped on the ice [and] his vehicle turned the opposite direction of traffic and [Alexander] hit him head on. [Alexander] stated that [Akram] rotated in front of his vehicle causing him to collide with his front bumper. [Shevelchinksy] stated that he rear ended [Alexander] due to the accident in front of him and the slippery road. [Plaintiff] stated that he braked to avoid the pileup and was rear ended by [Islam]. [Islam] stated that [Plaintiff] suddenly braked in front causing him to hit his rear bumper. No injuries.
In his affidavit, Shevelchinksy avers as follows: On January 25, 2019, he was driving his vehicle southbound in the left lane of the two-lane Harlem River Drive for several minutes when Alexander's vehicle, which had been traveling in the right lane in front of Shevelchinksy, suddenly merged partially into the left lane. Immediately after that partial merger, Alexander's vehicle struck Akram's vehicle. As soon as Shevelchinksy observed Alexander's partial merger in the left lane, he applied his vehicle's brakes but was unable to bring his vehicle to a complete stop before the front passenger-side corner of his vehicle contacted the rear of Alexander's vehicle. After his vehicle was completely stopped, Shevelchinksy exited it and observed two vehicles stopped behind his. Those vehicles—Plaintiff's and the YZN Defendants’ vehicles—appeared to have made contact. Shevelchinksy's vehicle, however, never contacted either of Plaintiff's or the YZN Defendants’ vehicles.
In his affidavit, Plaintiff avers as follows: On January 25, 2019, at approximately 8:00 p.m., he was driving his vehicle southbound on the Harlem River Drive at less than the speed limit of 40 miles per hour due to the icy road conditions. He "observed three vehicles traveling ahead of [him] who [he] reasonably believe[d] were traveling at speeds above the speed limit notwithstanding the icy roadway conditions." Suddenly, these three vehicles violently collided with each other, blocking the lanes of traffic in front of Plaintiff and requiring him to immediately apply his vehicle's brakes. Plaintiff was able to bring his vehicle to a complete stop before colliding with any of the three vehicles. Shortly after stopping, however, Plaintiff's vehicle was struck in the rear by the YZN Defendants’ vehicle.
In his affidavit, Alexander avers as follows: On January 25, 2019, at approximately 8:20 p.m., he was driving southbound in the right lane of the two-lane Harlem River Drive. At the time, traffic was light. Akram's vehicle was driving immediately ahead of Alexander in the left lane, so that the rear bumper of Akram's vehicle was a few feet ahead of the front bumper of Alexander's vehicle. Suddenly, Akram's vehicle spun 180 degrees into the right lane, so that the front of Akram's vehicle was facing toward the front of Alexander's vehicle. Alexander immediately braked his vehicle but was unable to avoid a collision with Akram's vehicle. Following that collision, Alexander's vehicle came to a stop but was then struck in the rear by Shevelchinksy's vehicle. Alexander subsequently exited his vehicle and saw two other vehicles behind Shevelchinksy's vehicle that had apparently come into contact with each other. Neither Alexander's vehicle nor Shevelchinksy's vehicle, however, contacted either of those two other vehicles.
In his affidavit, Akram avers as follows: On January 25, 2019, at approximately 12:00 p.m., he was driving southbound in the left lane of the two-lane Harlem River Drive at approximately 10 miles per hour with both hands on the steering wheel while looking straight ahead. Suddenly, Akram's vehicle slid on a patch of black ice and turned around to the right so that it was facing toward oncoming traffic. His vehicle was then struck by Alexander's vehicle, and Alexander's vehicle was then struck by Shevelchinksy's vehicle. There were two vehicles involved in an accident in the road behind Akram's, Alexander's, and Shevelchinksy's vehicles, but those two vehicles never came into contact with any of Akram's, Alexander's, or Shevelchinksy's vehicles.
No party submitted responses to Shevelchinksy's or Akram's respective Statement of Material Facts. Thus, each fact properly stated in those...
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