Vaccariello v. Meineke Car Care Ctr., Inc.

• Decision Date: 17 February 2016
• Citation: 136 A.D.3d 890,26 N.Y.S.3d 139
• Parties: Frank VACCARIELLO, respondent, v. MEINEKE CAR CARE CENTER, INC., doing business as Meineke Shop # 296, appellant.
• Court: New York Supreme Court — Appellate Division

136 A.D.3d 890

26 N.Y.S.3d 139

Frank VACCARIELLO, respondent,

v.MEINEKE CAR CARE CENTER, INC., doing business as Meineke Shop # 296, appellant.

Supreme Court, Appellate Division, Second Department, New York.

Feb. 17, 2016.

Baxter, Smith & Shapiro, P.C., White Plains, N.Y. (Sim R. Shapiro, Kimberly A. Carpenter, and Jennifer Warycha of counsel), for appellant.

Reisman, Rubeo, McClure & Altman, LLP, Hawthorne, N.Y. (Christopher W. McClure and Sharman Propp of counsel), for respondent.

WILLIAM F. MASTRO, J.P., LEONARD B. AUSTIN, JOSEPH J. MALTESE and BETSY BARROS, JJ.

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Westchester County (Smith, J.), dated August 25, 2014, which granted that branch of the plaintiff's motion which was for leave to reargue his opposition to that branch of the defendant's motion which was for summary judgment dismissing the complaint, which had been granted in an order of the same court dated January 7, 2014, and, upon reargument, in effect, vacated the order dated January 7, 2014, and thereupon denied that branch of the defendant's motion which was for summary judgment dismissing the complaint, and denied that branch of the defendant's motion which was to dismiss the complaint as a sanction for spoliation of evidence.

ORDERED that the order dated August 25, 2014, is modified, on the law, (1) by deleting the provisions thereof, upon reargument, vacating the order dated January 7, 2014, and thereupon denying that branch of the defendant's motion which was for summary judgment dismissing the complaint, and substituting therefor a provision, upon reargument, adhering to the determination in the order dated January 7, 2014, granting that branch of the motion, and (2) by adding to the provision thereof denying that branch of the defendant's motion which was to dismiss the complaint as a sanction for spoliation of evidence the words "as academic"; as so modified, the order dated August 25, 2014, is affirmed, with costs to the defendant.

On July 14, 2006, the defendant, a motor vehicle repair shop, performed repairs to the plaintiff's vehicle brakes, rotors, and calipers. The plaintiff alleges that on September 14, 2006, he brought his vehicle back to the defendant because, among other things, he heard a "weird sound" coming from the vehicle. The plaintiff left his vehicle at the defendant's repair shop for less than an hour, and when he returned, an employee of the defendant informed him that his vehicle only needed brake fluid. The defendant did not charge the plaintiff for this follow-up service, nor did it keep any record of the visit.

The plaintiff alleges that on September 16, 2006, as he was attempting to make a turn, he lost control of his vehicle because his brakes failed, and collided with a wall. The plaintiff commenced this action to recover damages for the personal injuries he allegedly sustained as a result of the defendant's negligence in, among other things, failing to properly inspect and repair the brakes on September 14, 2006.

The defendant moved for summary judgment dismissing the complaint, and also to dismiss the complaint as a sanction for the plaintiff's purported spoliation of the vehicle in 2008. In an order dated January 7, 2014, the Supreme Court granted that branch of the defendant's motion which was for summary judgment dismissing the complaint, and did not reach the remaining branch of the defendant's motion. The court determined, among other things, that in opposition to the defendant's motion , the plaintiff failed to raise a triable issue of fact. In this regard, the plaintiff had submitted an invoice from M&M Service, Inc., an auto repair shop, dated September 20, 2006 (hereinafter the M&M invoice), which stated: "The vehicle came in with the left front caliper hanging by the hydra[u]lic hose, and one of the two pistons was missing. It was found that the bolts that hold the caliper to the caliper bracket were not tightened properly and vibr[a]ted off causing the caliper to detach itself from its place of [r]esidence on the caliper bracket, which in turn caused a loss of hydra[u]lic pressure resulting in brake failure." The M& M invoice was not certified as a business record, and did not identify the person who prepared it. The court did not consider the M&M invoice, on the ground that evidence of postaccident repairs is inadmissible as proof of a defendant's admission of negligence. Without considering the M&M invoice, the court found that the plaintiff failed to submit any evidence that the defendant was negligent in its installation, service, or inspection of the brakes.

Thereafter, the plaintiff moved for leave to reargue his opposition to that branch of the defendant's motion which was for summary judgment dismissing the complaint on the grounds that the Supreme Court overlooked the plaintiff's deposition testimony that he...