Mendoza v. Exclusive Concepts, Inc., 2008 NY Slip Op 32568(U) (N.Y. Sup. Ct. 9/8/2008)

• Decision Date: 08 September 2008
• Docket Number: 4146-03/,Motion Sequence No. 002
• Citation: Mendoza v. Exclusive Concepts, Inc., 2008 NY Slip Op 32568(U) (N.Y. Sup. Ct. 9/8/2008), 2008 NY Slip Op 32568, 4146-03/, Motion Sequence No. 002 (N.Y. Sup. Ct. Sep 08, 2008)
• Parties: MILDRED MENDOZA, Plaintiff, v. EXCLUSIVE CONCEPTS, INC., and MELVIN SANTOS, Defendants.
• Court: New York Supreme Court

Page 1

2008 NY Slip Op 32568(U)

MILDRED MENDOZA, Plaintiff, v. EXCLUSIVE CONCEPTS, INC., and MELVIN SANTOS, Defendants.

4146-03/

Motion Sequence No. 002

Supreme Court of the State of New York, Nassau County.

September 8, 2008.

ANTONIO I. BRANDVEEN, Judge.

The plaintiff moves for an order pursuant to CPLR 3212 granting summary judgment on the issue of liability upon the ground the defendants' negligence was the sole legal and proximate cause of the subject occurrence, and for an order pursuant to CPLR 3126 striking the answer of the defendant Melvin Santos upon the ground the defendant repeatedly failed to appear for court-ordered examinations before trial. The underlying personal injury action arises from a motor vehicle accident on July 5, 2003, at the intersection of Fulton Avenue and Robson Place, Hempstead, New York, between a vehicle owned by the corporate defendant and operated by the defendant Melvin Santos and a vehicle operated by the plaintiff. This Court has carefully reviewed and considered all of the parties' papers submitted with respect to this motion.

The plaintiff's attorney states, in a supporting affirmation dated March 7, 2008, the accident was caused when the defendant driver failed to yield the right of way, and made a left turn causing a front to front collision with the plaintiffs oncoming vehicle. The plaintiffs attorney points out, following a March 23, 2005 preliminary conference order and a number of defense counsel adjournments, the plaintiff and a representative of the defendant corporation testified at examinations before trial on February 7, 2006. The plaintiffs attorney notes the defendant Melvin Santos failed to appear for a court-ordered deposition, and a statement was placed on the record by this defendant's counsel indicating this defendant could not be located, and may have been deported. The plaintiffs attorney submits, under these circumstances, the plaintiff is entitled to summary judgment on the issue of liability, or at the very least, an order striking the defendant Melvin Santos' answer. The plaintiffs attorney points to the plaintiff's testimony, and contends the law requires a left turning vehicle must yield the right of way to an approaching vehicle from the opposite direction. The plaintiff's attorney insists there is no question the defendant Melvin Santos violated the Vehicle & Traffic Law § 1141 by making a left turn, and failing to yield to the plaintiff's oncoming car, and this defendant's disappearance or making himself unavailable provides no basis for denying this motion.

The defendant Exclusive Concepts, Inc. opposes this motion. The attorney for the defendant Exclusive Concepts, Inc. states, in an opposing affirmation dated April 9, 2008, striking the answer of the defendant Melvin Santos would be prejudicial to the corporate defendant whose only potential liability is vicarious. The attorney for the defendant Exclusive Concepts, Inc. notes the corporate defendant appeared for a deposition on February 7, 2006. The attorney for the defendant Exclusive Concepts, Inc. requests the defendant Melvin Santos be precluded from testifying at the trial if not produced for a deposition by a date set down by the Court. The attorney for the defendant Exclusive Concepts, Inc. asserts the plaintiffs motion for summary judgment on liability should be denied because there are questions of fact involved in this intersection collision, including whether the plaintiff was negligent because of action or inaction. The attorney for the defendant Exclusive Concepts, Inc. avers questions exist as to whether the plaintiff, who first observed the defendant Melvin Santos from 50 feet away, took appropriate and adequate steps to avoid the happening as it related to the motor vehicle the plaintiff operated. The attorney for the defendant Exclusive Concepts, Inc. points to the plaintiffs testimony, in pertinent part, regarding the happening of the accident, and states the plaintiff had sufficient time to avoid the accident, and the testimony was inconsistent.

The attorney for the defendant Melvin Santos states, in an opposing affirmation dated April 30, 2008, the plaintiffs requests are improper, and adopt the arguments by counsel for the codefendant in opposition to the plaintiffs motion. The attorney for the defendant Melvin Santos contends striking the answer of the defendant Melvin Santos is inappropriate because the plaintiff has not made a clear showing, as required by law, that the failure to comply with discovery demands is willful, contumacious, or in bad faith. The attorney for the defendant Melvin Santos points out the defendant Melvin Santos has complied with all discovery directives apart from appearing for a deposition. The attorney for the defendant Melvin Santos also notes the defendant Melvin Santos has been deported from this country, and cannot be brought back for a deposition, so there is nothing willful about this defendant's failure to appear, but it is rather an impossibility. The attorney for the defendant Melvin Santos contends should the Court grant any portion of the plaintiffs motion under CPLR 3126, it is suggested the Court exercise its discretion and utilitze a less drastic remedy as provided in CPLR 3126.

The plaintiff's attorney states, in a reply affirmation dated May 1, 2008, the attorney for the defendant Melvin Santos has not submitted any sworn statement from the defendant Melvin Santos in support of the deportation claim nor should it make any difference. The plaintiffs attorney submits there is no legal basis for preventing the plaintiff from having the defendant driver's answer stricken or obtaining summary judgment on liability against the defendant simply because the defendant owner may found vicariously responsible. The plaintiff's attorney states, under the circumstances of this motion, it would be prejudicial to deny the plaintiff the relief sought by motion. The plaintiff's attorney claims the plaintiff's deposition testimony and the case law unequivocally establish the defendant driver was solely responsible for the happening of the accident. The plaintiffs attorney points out no evidentiary proof has been submitted for the defendant driver to either excuse the defendant driver's failure to appear for deposition or to rebut the plaintiffs prima facie showing of entitlement to judgment on liability. The plaintiff's attorney notes the defendant owner's affirmative defense of non-permissive use which, if established at trial, would be the owner's defense to any imposition of vicarious liability, so there is no reason to deny the plaintiff this relief on the issue of vicarious liability. The plaintiffs attorney avers the defense counsels' assertions are based upon speculative and conclusory assertions.

Under CPLR 3212(b), a motion for summary judgment "shall show that there is no defense to the cause of action or that the cause of action or defense has no merit. The motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party." "The motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact." Summary judgment is a drastic remedy that is awarded only when it is clear that no triable issue of fact exists (Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 325; Andre v. Pomeroy, 35 N.Y.2d 361). Summary judgment is the procedural equivalent of a trial (Museums at Stony Brook v. Village of Patchogue Fire Dept., 146 A.D. 2d 572). Thus the burden falls upon the moving party to demonstrate that, on the facts, it is entitled to judgment as a matter of law (see, Whelen v. G.T.E. Sylvania Inc., 182 A.D.2d 446). The court's role is issue finding rather than issue determination (see, e.g., Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395; Gervasio v. Di Napoli, 134 A.D.2d 235, 236; Assing v. United Rubber Supply Co., 126 A.D.2d 590). Nevertheless, "the court must evaluate whether the alleged factual issues presented are genuine or unsubstantiated" (Gervasio v. Di Napoli, supra, 134 A.D.2d at 236, quoting from Assing v. United Rubber Supply Co., supra; see, Columbus Trust Co. v. Campolo, 110 A.D.2d 616, aff'd 66 N.Y.2d 701). If the issue claimed to exist is not genuine, and, therefore, there is nothing to be resolved at the trial, the case should be summarily decided (see, Andre v. Pomeroy, 35 N.Y.2d at 364; Assing v. United Rubber Supply Co., supra).

"Vehicle and Traffic Law § 1141 provides that a left-turning vehicle must yield the right-of-way to a vehicle approaching from the opposite direction" (Lester v. Jolicofur, 120 A.D.2d 574, 502 N.Y.S.2d 61). A violation of Vehicle and Traffic Law § 1141 constitutes negligence as a matter of law, to wit the driver of the left turning vehicle who fails to observe the approaching vehicle from the opposite direction is under a duty to see that which under the circumstances should be seen by the proper use of senses and not doing so is a violation (see Nunziata v. Birchell, 238 A.D.2d 555, 556, 656 N.Y.S.2d 383 [2^nd Dept., 1997]). Here, the defendant Melvin Santos made a left turn, and failed to yield to the plaintiff's oncoming vehicle. Clearly, the plaintiff had the right of way, and was entitled to anticipate this defendant operator would obey the traffic laws (see Stiles v County of Dutchess...