Sam v. Town of Rotterdam
| Decision Date | 12 March 1998 |
| Citation | 248 A.D.2d 850,670 N.Y.S.2d 62 |
| Parties | , 1998 N.Y. Slip Op. 2255 Sien SAM et al., Appellants, v. TOWN OF ROTTERDAM, Respondent. (And a Third-Party Action.) |
| Court | New York Supreme Court — Appellate Division |
Powers & Simmerman (Mark Powers, of counsel), Schenectady, for appellants.
Ainsworth, Sullivan, Tracy, Knauf, Warner & Ruslander (Anthony V. Cardona Jr., of counsel), Albany, for respondent.
Before MIKOLL, J.P., and MERCURE, CREW, WHITE and YESAWICH, JJ.
Appeal from an order of the Supreme Court (Caruso, J.), entered February 10, 1997 in Schenectady County, which granted defendant's motion for summary judgment dismissing the complaint.
On February 2, 1993, a police vehicle owned by defendant was delivered to Salisbury Chevrolet Inc., an automobile dealership and repair facility in the Town of Scotia, Schenectady County, for repairs to its antilock braking system. At that time, Police Officer Carl La Malfa advised Salisbury's service personnel that the vehicle's antilock brake light flashed intermittently, which was, as he advised Salisbury, a recurrence of a similar problem that had been the subject of a January 19, 1993 service call. As a Salisbury employee was driving the vehicle into the service area, the brakes failed, causing the vehicle to strike plaintiff Sien Sam (hereinafter plaintiff), a Salisbury brake technician, bringing about the injuries that are the subject of this action. The complaint alleges causes of action against defendant claiming (1) defendant's derivative liability as owner of the vehicle based on the alleged negligence of the driver, and (2) defendant's negligence in failing to make Salisbury aware of the dangerous and defective condition of the vehicle's braking system. Following joinder of issue and defendant's commencement of a third-party action against Salisbury, but before any discovery was conducted, defendant moved for summary judgment dismissing the complaint. Supreme Court granted the motion and plaintiffs appeal.
We affirm. As a threshold matter, we note plaintiffs' concession that Supreme Court properly dismissed their first cause of action, predicated upon the alleged negligence of plaintiff's fellow employee (Workers' Compensation Law § 29[6]; see, Kenny v. Bacolo, 61 N.Y.2d 642, 645, 472 N.Y.S.2d 78, 460 N.E.2d 219; Christiansen v. Silver Lake Contr. Corp., 188 A.D.2d 507, 508, 591 N.Y.S.2d 189).
The question of whether Supreme Court was correct in its grant of summary judgment dismissing plaintiffs' second cause of action is somewhat more problematic. Notably, the primary evidentiary support for defendant's summary judgment motion came from La Malfa's supporting deposition, an instrument which, although subscribed and sworn to under the penalties of perjury and containing the warning set forth in Penal Law § 210.45, was not sworn to before a notary public or commissioner of deeds. Notwithstanding the existence of some caselaw tending to equate an affirmation with an affidavit (see, People v. Sullivan, 56 N.Y.2d 378, 383-384, 452 N.Y.S.2d 373, 437 N.E.2d 1130; Matter of Kurt EE., 199 A.D.2d 945, 606 N.Y.S.2d 371), the inescapable fact is that CPLR 3212(b) very specifically requires a summary judgment motion to "be supported by affidavit". In addition, the provision of CPLR 2106 that attorneys, physicians, osteopaths and dentists may submit an affirmation "with the same force and effect as an affidavit" clearly manifests the Legislature's intention that no other class of witness be granted that privilege. Although there is much to be said for permitting written affirmations by all persons, the Legislature has repeatedly failed to take action on proposals to that effect (see, Alexander, Practice Commentaries, McKinney's Cons Laws of N.Y., Book 7B, CPLR 2106, at 816).
Nonetheless, defendant...
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