Rennie v. Barbarosa Transport, Ltd.

• Decision Date: 22 June 1989
• Citation: 151 A.D.2d 379,543 N.Y.S.2d 429
• Parties: Leo RENNIE, Plaintiff-Appellant, v. BARBAROSA TRANSPORT, LTD. et al., Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 429

543 N.Y.S.2d 429

151 A.D.2d 379

Leo RENNIE, Plaintiff-Appellant, v. BARBAROSA TRANSPORT, LTD. et al., Defendants-Respondents.

Supreme Court, Appellate Division First Department.

June 22, 1989.

F.B. Potack, for plaintiff-appellant.

P. Finning, Tappan, for defendants-respondents.

Before KUPFERMAN, J.P., and ROSS, MILONAS, WALLACH, and RUBIN, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, Bronx County (Harold Tompkins, J.), entered September 30, 1988, which denied the plaintiff's motion for partial summary judgment on liability, is affirmed, without costs.

On the morning of April 21, 1986, at the intersection of Third Avenue and 126th Street, New York County, a collision occurred between a motor vehicle, operated by Mr. Leo Rennie, and, a motor vehicle, owned by Barbarosa Transport, Ltd. (Barbarosa), and, operated by Mr. Reyes Guyven.

Thereafter, Mr. Rennie (plaintiff) commenced an action against Barbarosa and Mr. Guyven (defendants) to recover damages for the injuries he suffered in that accident, as a result of the defendants' alleged negligence.

Following the joinder of issue, the plaintiff moved for partial summary judgment on liability. Defendants opposed. The IAS Court denied that motion. Plaintiff appealed.

After our review of the record in this negligence case, we find that the plaintiff has not made a sufficient showing to justify summary judgment (Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642). We reach this conclusion, since "summary judgment is inappropriate where competing inferences may reasonably be drawn as to whether ... [defendants'] conduct constituted negligence" (Myers v. Fir Cab Corp, 64 N.Y.2d 806, 808, 486 N.Y.S.2d 922, 476 N.E.2d 321) [material in brackets added].

Summary judgment is seldom granted in negligence cases, "because even when the facts are conceded there is often a question as to whether the defendant or the plaintiff acted reasonably under the circumstances. This can rarely be decided as a matter of law ..." (Andre v. Pomeroy, 35 N.Y.2d 361, 364, 362 N.Y.S.2d 131, 320 N.E.2d 853).

It is hornbook law that "[t]he function of summary judgment is issue finding, not issue determination (Sillman v. Twentieth Century-Fox Film Corp. 3 N.Y.2d 395, 165 N.Y.S.2d 498, 144 N.E.2d 387; Allied Control Co. v. C.F.A. Graphics, 43 A.D.2d 678, 350 N.Y.S.2d 143; 175 Check Cashing Corp. v. Chubb Pac. Indem. Group, 95 A.D.2d 701, 464 N.Y.S.2d 118). On such a motion the Court should draw all reasonable inferences in favor of the nonmoving party (Robinson v. Strang Mem. Hosp., 98 A.D.2d 976, 471 N.Y.S.2d 254) and should not pass on issues of credibility (Capelin Assoc. v. Globe Mfg. Corp., 34 N.Y.2d 338, 357 N.Y.S.2d 478, 313 N.Y.S.2d 776) ..." (Pantote Big Alpha Foods, Inc. v. Schefman, 121 A.D.2d 295, 296-297, 503 N.Y.S.2d 58 (1st Dept.) [material in brackets added].

We stated in Gibson v. Am. Export, 125 A.D.2d 65, 74, 511 N.Y.S.2d 631 (1st Dept.), that "[a]s repeatedly held, the remedy of summary judgment is a drastic one, which should not be granted where there is any doubt as to the existence of a triable issue (Moskowitz v. Garlock, 23 A.D.2d 943, 944, 259 N.Y.S.2d 1003) or where the issue is even arguable (Barrett v. Jacobs, 255 N.Y. 520, 522, 175 N.E. 275), since it serves to deprive a party of his day in Court. Relief should be granted only where no genuine, triable issue of fact exists (see, Werfel v. Zivnostenska Banka, 287 N.Y. 91, 38 N.E.2d 382) ...".

In the instant matter, some of the triable issues we find are:

1. Although plaintiff contends that, before the accident, he had the green light in his favor, and, that the defendant driver, Mr. Guyven, was allegedly proceeding at a dangerous rate of speed through a red light, did the plaintiff use reasonable care to avoid the accident (Klayman v. City of New York, 130 A.D.2d 551, 554, 515 N.Y.S.2d 285; and, Sontag v. Mulkerin, 63 A.D.2d 699, 404 N.Y.S.2d 697 (1978))? and,

2. Since the plaintiff does not dispute the defendants' contention that it was drizzling at the time of the accident, did plaintiff use reasonable care under the weather conditions?

Although the dissent admits the defendant driver's statement, which asserts that the plaintiff caused the accident, contains allegations sufficient to raise a question of fact, the dissent contends that such statement should be rejected, since it is not in affidavit form, and, therefore, plaintiff's motion for summary judgment should be granted.

A unanimous Court of Appeals in Winegrad v. New York Univ. Med. Center, supra, 64 N.Y.2d at 853, 487 N.Y.S.2d 316, 476 N.E.2d 642, stated that, when a movant for summary judgment fails "to make a prima facie showing of entitlement to judgment as a matter of law", the motion must be denied "regardless of the sufficiency of the opposing papers ..." [citations omitted].

Accordingly, based upon our analysis supra, we affirm.

All concur except RUBIN, J., who dissents in a memorandum as follows.

RUBIN, Justice (dissenting).

The pleadings submitted in opposition to plaintiff's motion for summary judgment are insufficient as a matter of law to defeat the motion. Plaintiff has submitted proof in admissible form (his sworn affidavit) to establish a prima facie case of negligence in the operation of a motor vehicle. In response to the motion for summary judgment, defendants have submitted only the affirmation of an attorney without personal knowledge of the facts and a writing, purported to be the unsworn statement of defendant Reyes Guyven, which disputes the material allegations of the complaint. This writing is not in admissible form. No excuse is stated for the failure to tender affidavits or other evidence of the existence of a genuine defense (Di Sabato v. Soffes, 9 A.D.2d 297, 300, 193 N.Y.S.2d 184).

In Di Sabato v. Soffes, this court enunciated the philosophy behind the extension of summary judgment to negligence cases with the statement: "One of the recognized purposes of summary judgment is to expedite the disposition of civil cases where no issue of material fact is presented to justify a trial. While the courts are cautioned to exercise the power to summarily direct judgment with full recognition that a party with a just claim or a valid defense is entitled to his day in court, timidity in exercising the power in favor of a legitimate claim and against an unmerited one, not alone defeats the ends of justice in a specific case, but contributes to calendar congestion which, in turn, denies to other suitors their rights to prompt determination of their litigation" (9 A.D.2d 297, 299, 193 N.Y.S.2d 184, emphasis added). In holding that the statement offered by the defense is acceptable to defeat summary judgment, the majority has obviated the need to submit an affidavit by someone with personal knowledge of the facts, the need to offer any excuse for the failure to submit such an affidavit and the requirement to demonstrate the existence of a bona fide issue raised by evidentiary facts (Rotuba Extruders v. Ceppos, 46 N.Y.2d 223, 231, 413 N.Y.S.2d 141, 385 N.E.2d 1068).

It is not subject to dispute that plaintiff's affidavit represents competent evidence by someone having personal knowledge of the facts upon a motion for summary judgment (CPLR 3212(b)). His affidavit is sufficient to make out a prima facie case unless it can be said that it contains mere conclusory allegations (Indig v. Finkelstein, 23 N.Y.2d 728, 296 N.Y.S.2d 370, 244 N.E.2d 61). In this instance, plaintiff in his verified complaint, verified bill of particulars and affidavit on the motion, sets forth a reasonably detailed description of the accident which, in the absence of opposing evidence, clearly entitles him to judgment against defendant.

Defendants' pleadings fall far short of any standard promulgated by the Court of Appeals for the sufficiency of opposing papers. The rule that a party opposing summary judgment must "submit evidentiary facts or materials, by affidavit or otherwise ... demonstrating the existence of a triable issue of ultimate fact" (Indig v. Finkelstein, supra, 23 N.Y.2d 728, 729, 296 N.Y.S.2d 370, 244 N.E.2d 61, citations omitted), has been liberalized only to the extent that "the opposing party, as contrasted with the movant, may be permitted to demonstrate acceptable excuse for his failure to meet the strict requirement of tender in admissible form" (Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718, citations omitted). As stated in Phillips v. Kantor, 31 N.Y.2d 307, 338 N.Y.S.2d 882, 291 N.E.2d 129, "an affidavit setting forth names of witnesses, the substance of their testimony, how it was known what their testimony would be, and how the witnesses acquired their knowledge, might be sufficient to defeat a motion for summary judgment, without the witnesses' own affidavits" (31 N.Y.2d 307, 312, 338 N.Y.S.2d 882, 291 N.E.2d 129, citing Indig v. Finkelstein, 23 N.Y.2d 728, 730, 296 N.Y.S.2d 370, 244 N.E.2d 61). As a general rule, "[w]hether the excuse offered will be acceptable must depend on the circumstances in the particular case" Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d 1065, 1068, 416 N.Y.S.2d 790, 390 N.E.2d 298).

In the matter under review, the record is entirely devoid of any excuse why the affidavit of defendant Guyven or his passenger at the time of the accident has not been submitted in opposition to the motion. While the allegations contained in the writing purported to be defendant's...