Yacoub v. Natt Leasing, Inc.

Decision Date30 October 2014
Citation3 N.Y.S.3d 287 (Table)
PartiesDanny YACOUB, Plaintiff(s), v. NATT LEASING, INC., Boubacar Keita, and the City of New York, Defendant(s).
CourtNew York Supreme Court

Decolator, Cohen & DiPrisco, LLP, Attorney for Plaintiff.

Baker, McVoy, Morrissey & Moskovits, PC, Attorney for Defendants Natt Leasing, Inc. and Boubacar Keita.

New York City Law Department, Attorney for the City.

Opinion

MITCHELL J. DANZIGER, J.

In this action for alleged personal injuries stemming from a motor vehicle accident, defendant THE CITY OF NEW YORK (The City) moves for an order granting it summary judgment, thereby dismissing this action and all cross-claims asserted against it. Saliently, the City avers that insofar as its negligence, if any, did not proximately cause the instant accident, dismissal of this action and all cross-claims is warranted. Additionally, the City argues that summary judgment with respect to all of plaintiff's common-law negligence claims is warranted on grounds that as a police officer, on duty at the time of the alleged accident, any such claims against the City, plaintiff's employer, are barred by the relevant case law. Plaintiff opposes the City's motion to the extent it seeks summary judgment with respect to his second impact claim. Saliently, plaintiff contends that the City fails to establish prima facie entitlement to summary judgment because the City only endeavors to establish that its negligence, if any, was not the proximate cause of the accident, but utterly fails to argue, let alone tender evidence establishing that it provided plaintiff with a safe vehicle within which to work; such failure comprising the claim against the City, namely that it failed to provide plaintiff with a safe vehicle, which resulted in the enhancement and aggravation of plaintiff's injuries. Defendants NATT LEASING, INC. (Natt) and BOUBACAR KEITA (Keita) oppose the City's motion on grounds identical to those asserted by plaintiff.

For the reasons that follow hereinafter, the City's motion is granted, in part.

The instant action is for alleged personal injuries stemming from a motor vehicle accident. The complaint alleges that on November 4, 2010, plaintiff while operating a vehicle owned by the City, came into contact with a vehicle owned by Nat and operated by Keita on Morris Avenue near its intersection with East 164th Street, Bronx, NY. Plaintiff alleges that Nat and Keita were negligent in the operation of their vehicle, said negligence causing this accident and resulting injuries. Plaintiff also alleges that the City failed to provide proper padding for the interior of its vehicle, namely on a computer console located therein. Such failure, plaintiff alleges, constituting negligence in that it enhanced plaintiff's injury when his person came into contact with the console. As a result of the foregoing, plaintiff alleges that the City violated Section 205–e of the General Municipal Law in that it failed to comply with Labor Law § 27–a, requiring it to provide plaintiff with a safe place to work and that the City was generally negligent in failing to provide plaintiff with a crashworthy vehicle, namely by failing to provide proper padding for the interior of its vehicle.

The City's motion seeking summary judgment on Natt and Keita's cross-claims for contribution and indemnification1 is granted inasmuch as its evidence establishes that by impacting plaintiff's vehicle in the rear, Nat and Keita were negligent, which negligence proximately caused of this accident.

The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law (Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324 [1986] ; Zuckerman v. City of New York, 49 N.Y.2d 557, 562 [1980] ). Thus, a defendant seeking summary judgment must establish prima facie entitlement to such relief as a matter of law by affirmatively demonstrating, with evidence, the merits of the claim or defense, and not merely by pointing to gaps in plaintiff's proof (Mondello v. DiStefano, 16 AD3d 637, 638 [2d Dept 2005] ; Peskin v. New York City Transit Authority, 304 A.D.2d 634, 634 [2d Dept 2003] ). There is no requirement that the proof be submitted by affidavit, but rather that all evidence proffered be in admissible form (Muniz v. Bacchus, 282 A.D.2d 387, 388 [1st Dept 2001], revd on other grounds Ortiz v. City of New York, 67 AD3d 21, 25 [1st Dept 2009] ).

Once a movant meets his initial burden on summary judgment, the burden shifts to the opponent who must then produce sufficient evidence, generally also in admissible form, to establish the existence of a triable issue of fact (Zuckerman, at 562). It is worth noting, however, that while the movant's burden to proffer evidence in admissible form is absolute, the opponent's burden is not. As noted by the Court of Appeals,

[t]o obtain summary judgment it is necessary that the movant establish his cause of action or defense sufficiently to warrant the court as a matter of law in directing summary judgment' in his favor, and he must do so by the tender of evidentiary proof in admissible form. On the other hand, to defeat a motion for summary judgment the opposing party must show facts sufficient to require a trial of any issue of fact.' Normally if the opponent is to succeed in defeating a summary judgment motion, he too, must make his showing by producing evidentiary proof in admissible form. The rule with respect to defeating a motion for summary judgment, however, is more flexible, for the opposing party, as contrasted with the movant, may be permitted to demonstrate acceptable excuse for his failure to meet strict requirement of tender in admissible form. Whether the excuse offered will be acceptable must depend on the circumstances in the particular case

(Friends of Animals v. Associated Fur Manufacturers, Inc., 46 N.Y.2d 1065, 1067–1068 [1979] [Internal citations omitted] ). Accordingly, generally, the opponent of a motion for summary judgment who seeks to have the court consider inadmissible evidence must proffer an excuse for failing to submit evidence in inadmissible form (Johnson v. Phillips, 261 A.D.2d 269, 270 [1st Dept 1999].

Moreover, when deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility. As the Court stated in Knepka v. Talman (278 A.D.2d 811, 811 [4th Dept 2000] ), Supreme Court erred in resolving issues of credibility in granting defendants' motion for summary judgment dismissing the complaint. Any inconsistencies between the deposition testimony of plaintiffs and their affidavits submitted in opposition to the motion present issues for trial (see also Yaziciyan v. Blancato, 267 A.D.2d 152, 152 [1st Dept 1999] ; Perez v. Bronx Park Associates, 285 A.D.2d 402, 404 [1st Dept 2001] ). Accordingly, the Court's function when determining a motion for summary judgment is issue finding not issue determination. Sillman v. Twentieth Century Fox Film Corp., 3 N.Y.2d 395, 404 [1957] ). Lastly, because summary judgment is such a drastic remedy, it should never be granted when there is any doubt as to the existence of a triable issue of fact (Rotuba Extruders v. Ceppos, 46 N.Y.2d 223, 231 [1978] ). When the existence of an issue of fact is even debatable, summary judgment should be denied (Stone v. Goodson, 8 N.Y.2d 8, 12 [1960] ).

In the absence of evidence to the contrary, a defendant who establishes that he was not negligent in the operation of his motor vehicle is entitled to summary judgment (Dinham v. Wagner, 48 AD3d 349, 350 [1st Dept 2008 [Court held that defendant established prima facie entitlement to summary judgment when she tendered evidence evincing that she was not at fault for the accident therein and could not have avoided the same.]; Cerda v. Parsley, 273 A.D.2d 339, 339 [2d Dept 2000] [Defendants were entitled to summary judgment because the evidence presented established that defendant operator was not negligent in the operation of defendants.] ). Alternatively, a defendant can establish prima facie entitlement to summary judgment by demonstrating that the plaintiff was negligent in the operation of his/her vehicle and that said negligence was the sole proximate cause of the accident (Espinoza v. Loor, 299 A.D.2d 167, 168 [2d Dept 2002] [Defendant “made out a prima facie case that the accident resulted solely from (plaintiff's) negligence.”] ); Borges v. Zukowski, 22 AD3d 439, 439 [2d Dept 2005] ).

It is well settled that a rear-end collision with a stopped vehicle is prima facie evidence of negligence on the part of the operator of the second, offending, and rear-ending vehicle (Carhuayano v. J & R Hacking, 28 AD3d 413, 414 [2d Dept 2006] ; Mitchell v. Gonzalez, 269 A.D.2d 250, 251 [1st Dept 2000] ; Johnson v. Phillips, 261 A.D.2d 269, 271 [1st Dept 1999] ; Danza v. Longieliere, 256 A.D.2d 434, 435 [2nd Dept 1998] ). In order to rebut the presumption of negligence, the operator of the rear-ending vehicle is required provide a cognizable non-negligent excuse (Carhuayano at 414; Johnson at 271; Mitchell at 251). Accordingly, a rear-end collision, when one of the vehicles is stopped, creates a prima facie case of liability with respect to the operator of the rear-ending vehicle2 (Edney v. Metropolitan Suburban Bus Authority, 178 A.D.2d 398, 399 [2d Dept 1991] ). A failure by the operator of the offending vehicle to rebut the finding of negligence with admissible evidence requires judgment in favor of the other vehicle (Grimes–Carrion v. Carroll, 13 AD3d 125, 126 [1st Dept 2004] ; Bendiik v. Dybowski, 227 A.D.2d 228, 228 [1st Dept 1996] ).

While in the Second Department a sudden stop by the vehicle ahead or unavoidable skidding on a wet surface constitute non-negligent explanations sufficient to rebut the presumption of negligence (Carhuayano at 414; Chepel ...

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