Stocklas v. Auto Solutions of Glenville, Inc.

• Citation: 780 N.Y.S.2d 215,2004 NY Slip Op 05815,9 A.D.3d 622
• Decision Date: 08 July 2004
• Docket Number: 94262.
• Parties: SHAWN STOCKLAS, Appellant-Respondent, v. AUTO SOLUTIONS OF GLENVILLE, INC., Respondent-Appellant, and RYAN D. DuBOIS et al., Respondents. (And Another Related Action.)
• Court: New York Supreme Court — Appellate Division

9 A.D.3d 622

780 N.Y.S.2d 215

2004 NY Slip Op 05815

SHAWN STOCKLAS, Appellant-Respondent, v. AUTO SOLUTIONS OF GLENVILLE, INC., Respondent-Appellant, and RYAN D. DuBOIS et al., Respondents. (And Another Related Action.)

94262.

Appellate Division of the Supreme Court of the State of New York, Third Department.

July 8, 2004.

Appeals (1) from an order of the Supreme Court (McNamara, J.), entered February 27, 2003 in Albany County, which, inter alia, granted defendants' motions for summary judgment dismissing the complaint, and (2) from an order of said court, entered November 10, 2003 in Albany County, which, inter alia, partially granted plaintiff's motion to renew and reinstated the complaint against defendant Auto Solutions of Glenville, Inc.

MUGGLIN, J.

On August 17, 1999, plaintiff was driving his employer's step van on Route 156, a two-lane highway in the Village of Altamont, Albany County. Plaintiff claims that when he was four or five car lengths behind a minivan—owned by defendant Robert J. Stephan and driven by defendant Ryan D. DuBois—he observed it suddenly slow, almost to a stop, before starting to turn into a private road leading to the Altamont Fairgrounds. Plaintiff further claims that he was unable to avoid colliding with the rear of the minivan because of a combination of oncoming traffic and total brake failure of the step van he was driving—the brake pedal going to the floor each time he stepped on it. Plaintiff brought this action against Stephan, DuBois, defendant Auto Solutions of Glenville, Inc. and defendant Monro Muffler Brake, Inc. Auto Solutions sold the step van to plaintiff's employer and, thereafter, upon request, maintained and serviced it. Monro inspected the step van in February 1999 and issued a New York State inspection sticker. Following joinder of issue, all defendants moved for summary judgment dismissing the complaint. Supreme Court, finding the opinion of plaintiff's expert to be factually unsupported and conjectural, granted the motions. Plaintiff appeals from this order.

Plaintiff also moved for reconsideration, submitting a supplemental affidavit of his expert in support of his motion. Supreme Court denied plaintiff's motion with regard to Monro, DuBois and Stephan, but granted plaintiff's motion to renew with regard to Auto Solutions, found an issue of fact, and reinstated the complaint against this defendant. Auto Solutions appeals from this order.

On the initial motions for summary judgment, we agree with Supreme Court that each defendant successfully shifted the burden to plaintiff to establish factual issues by the submission of admissible evidence (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). To meet his burden, plaintiff relied on his expert's affidavit. In reviewing Supreme Court's first order, we recognize that, in general, a "disagreement between . . . experts merely creates a question of credibility to be resolved by the finder of fact" (Diehr v Association for Retarded Citizens of Chemung County, 233 AD2d 818, 820 [1996]; see Meseck v General Elec. Co., 195 AD2d 798, 799-800 [1993]). However, where an "expert fail[s] to provide a factual or scientific basis for [his or her] opinion, [it is] render[ed] conclusory and insufficient to defeat summary judgment" (Rockefeller v Albany Welding Supply Co., 3 AD3d 753, 756 [2004]).

With respect to Stephan and DuBois, plaintiff relies on his expert's opinion that these defendants violated Vehicle and Traffic Law § 1166 by failing to use the existing turning and deceleration lane with the result that their vehicle was not positioned as far to the right as possible on the roadway. Supreme Court correctly determined that a deceleration or turning lane does not exist at that location, the highway being only two lanes wide, marked by fog lines on either side, and that the area referred to by plaintiff's expert is part of the shoulder of the highway (see Vehicle and Traffic Law §§ 140, 143-a), making the expert's opinion unsupported in fact and speculative.

Plaintiff further relied on his expert's opinion to attempt to establish liability against Monro. However, plaintiff's expert did not examine the step van until July 16, 2002, and he relied on plaintiff's claim that on five or six prior occasions when he...