QUINONES 14 ALCANTARA v. CABALLERO (2005)

I. INTRODUCTION

Plaintiffs sue to recover damages for personal injuries and loss of services suffered January 5, 2003, when plaintiff Quinones, then 10 years old, fell on a snow covered sidewalk abutting premises owned by defendants.   Defendant Eliza Mills, Leonard Mills now being deceased, moves, and the Caballero defendants cross-move, for summary judgment dismissing the complaint on the grounds of undisputed facts supplied by plaintiff Quinones's own deposition testimony.  C.P.L.R. § 3212(b).  In sum, when plaintiff Quinones was injured, snow still was falling and defendants had not shovelled, salted, or otherwise affected the area where she fell so as to create or exacerbate a hazardous condition.

Defendant Mills also seeks summary judgment due to plaintiffs' noncompliance with a disclosure order.  C.P.L.R. §§ 3126, 3212(b).  Upon oral argument May 10, 2005, for the reasons explained below, the court grants the Caballero defendants' cross-motion and based on the record established by their cross-motion, despite the initial motion's inadequate presentation of the pleadings and evidence, grants summary judgment to defendant Mills as well.  C.P.L.R. § 3212(b).

Here, as in Prenderville v. International Serv. Sys., Inc., 10 A.D.3d 334, 337-38, 781 N.Y.S.2d 110 (1st Dep't 2004), defendants had no recollection of the day plaintiff Quinones was injured and fail to establish through their own evidence a defense to liability:  that they had not undertaken any snow removal or treatment where plaintiff was walking after the snow started falling that day.   Yet here, plaintiffs provide defendants their necessary evidence that they had not shovelled or otherwise treated their abutting sidewalk the day plaintiff fell, demarcating a critical distinction.

Nonetheless, the evidence defendants must rely on is the 12 year old child plaintiff's testimony, recalling events when she was 10 and a half years old.   Therefore, to embrace the distinguishing factor, the court must take special care to assure the absence of any (1) indication of the child's confusion or her difficulty expressing her recollection or intended meaning or (2) evidence inconsistent with or otherwise undermining the certainty of her testimony.

II. SUMMARY JUDGMENT STANDARDS

To obtain summary judgment, defendants must make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence eliminating all material issues of fact.  C.P.L.R. § 3212(b);  Giuffrida v. Citibank Corp., 100 N.Y.2d 72, 81, 760 N.Y.S.2d 397, 790 N.E.2d 772 (2003).   If defendants satisfy this standard, the burden shifts to plaintiffs to rebut that prima facie showing, by producing evidence, in admissible form, sufficient to require a trial of material factual issues.  Darby & Darby v. VSI Intl., 95 N.Y.2d 308, 315, 716 N.Y.S.2d 378, 739 N.E.2d 744 (2000);  Judith M. v. Sisters of Charity Hosp., 93 N.Y.2d 932, 933-34, 693 N.Y.S.2d 67, 715 N.E.2d 95 (1999).   In evaluating the evidence for purposes of defendants' motions, the court must accept plaintiffs' version of the facts as true and construe the evidence in the light most favorable to plaintiffs.  J.E. v. Beth Israel Hosp., 295 A.D.2d 281, 283, 744 N.Y.S.2d 166 (1st Dep't 2002);  Cruz v. New York City Hous. Auth., 291 A.D.2d 223, 224, 737 N.Y.S.2d 81 (1st Dep't 2002);  Camadeo v. Leeds, 290 A.D.2d 355, 736 N.Y.S.2d 368 (1st Dep't 2002);  Maldonado v. Metropolitan Life Ins. Co., 289 A.D.2d 176, 735 N.Y.S.2d 111 (1st Dep't 2001).

III. DEFENDANTS' LIABILITY

 Defendants are not liable for failing to remove all snow from a sidewalk abutting their property, Sanders v. City of New York, 17 A.D.3d 169, 793 N.Y.S.2d 30, 31 (1st Dep't 2005);  Prenderville v. International Serv. Sys., Inc., 10 A.D.3d at 336-37, 781 N.Y.S.2d 110, particularly while snow is falling.  Rios v. Acosta, 8 A.D.3d 183, 184, 779 N.Y.S.2d 469 (1st Dep't 2004).   They may be liable, however, for an injury caused by accumulated snow on a sidewalk if their attempt at snow removal or other treatment of the condition negligently created a hazard or made the sidewalk more hazardous.   Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 142, 746 N.Y.S.2d 120, 773 N.E.2d 485 (2002);  Sanders v. City of New York, 17 A.D.3d at 169, 793 N.Y.S.2d at 31;  Prenderville v. International Serv. Sys., Inc., 10 A.D.3d at 337, 781 N.Y.S.2d 110;  Rios v. Acosta, 8 A.D.3d at 184, 779 N.Y.S.2d 469.   Thus, to raise a factual issue supporting their claims, plaintiffs must show a basis to infer that the condition causing plaintiff Quinones's injury resulted from defendants' negligent efforts at removing or otherwise treating the fallen snow.  Id.;  Tucciarone v. Windsor Owners Corp., 306 A.D.2d 162, 163, 761 N.Y.S.2d 181 (1st Dep't 2003).   Neither conclusory allegations, Espinal v. Melville Snow Contrs., 98 N.Y.2d at 142, 746 N.Y.S.2d 120, 773 N.E.2d 485;  Prenderville v. International Serv. Sys., Inc., 10 A.D.3d at 338, 781 N.Y.S.2d 110, nor speculation about defendants' efforts suffices.   Rios v. Acosta, 8 A.D.3d at 184, 779 N.Y.S.2d 469.

Defendant Mills characterizes plaintiff Quinones's deposition testimony as indicating shovelling and salting where plaintiff fell, on the afternoon when she fell, which would support defendants' liability.   Her consistent testimony, however, was, first:

Q When you got out of school that day, was it still snowing or had it stopped?

A It was still snowing.

Aff. of Keith E. Ford, Ex. D at 18.   Not only did she testify that “it was snowing ․ when I slipped and fell,” id. at 10-11, but also:

Q Let's go back to when you were walking to school.   It wasn't snowing out then?

A No.

Id. at 12.

Q When you were walking to school that morning, did you walk over the area where you fell later that day?

A No, ‘cause it was covered with snow․

․

Q You indicated there were parts where the snow was pushed away.

A In the middle was like a skinny part in the middle you could walk through.

Q Like a path?

A Yes.

Q Was that path in the area where you fell?

A No.

Id. at 15-16.

Although defendants had no recollection of January 5, 2003, and thus fail to establish through their testimony that they had not undertaken any snow removal or treatment after the snow started falling that day, Prenderville v. International Serv. Sys., Inc., 10 A.D.3d at 337-38, 781 N.Y.S.2d 110, such efforts are largely irrelevant since plaintiff Quinones was not walking on any shovelled area when she fell.   Defendant Cora Caballero did testify that defendants pour salt after they shovel, indicating they would not salt the sidewalk without shovelling.   Moreover, plaintiff herself provided defendants the evidence that they had neither shovelled nor salted while the snow was falling on the afternoon she was injured, to support their defense against liability:

Q Did you notice anybody shoveling ․ when you went for a walk with your mom?

A No, they had put salt.

․

Q When you were walking with your mom, did it look like the same amount of salt as the morning or did it look like they put more?

A It looked like the same amount of salt.

Id. at 26-27.   See Rios v. Acosta, 8 A.D.3d at 185, 779 N.Y.S.2d 469.   See also Prenderville v. International Serv. Sys., Inc., 10 A.D.3d at 338, 781 N.Y.S.2d 110.

IV. THE CHILD WITNESS

 Plaintiff Quinones was 12 years old when she testified, recalling events when she was 10 and a half years old.   To rely on a 12 year old minor's testimony, the court must find she had sufficient capacity and intelligence not only to comprehend the nature and obligations of the oath she took at her deposition, but also to recall and give an accurate account of what she saw or heard concerning the material events or circumstances she was questioned about.  People v. Parks, 41 N.Y.2d 36, 45, 390 N.Y.S.2d 848, 359 N.E.2d 358 (1976);  People v. Singleton, 284 A.D.2d 249, 726 N.Y.S.2d 561 (1st Dep't 2001);  People v. Taylor, 244 A.D.2d 152, 153, 663 N.Y.S.2d 848 (1st Dep't 1997);  People v. Bunche, 235 A.D.2d 271, 272, 652 N.Y.S.2d 524 (1st Dep't 1997).   Competency determinations, at least where the child witness is a complainant testifying against a defendant in a criminal action, rely on the trial court's opportunity to observe the witness, her demeanor and presence of mind, and undertake inquiries that disclose her capacity and intelligence.   People v. Parks, 41 N.Y.2d at 46, 390 N.Y.S.2d 848, 359 N.E.2d 358;  People v. Taylor, 244 A.D.2d at 153, 663 N.Y.S.2d 848.  “Impressions that may be validly drawn only from closehand observation cannot be ‘photographed into the record’ for later study.” People v. Parks, 41 N.Y.2d at 46, 390 N.Y.S.2d 848, 359 N.E.2d 358.

Against this authority, may the court in the context of summary judgment motions rely on a minor's testimony, already sworn, without actually observing the witness and conducting an independent inquiry to determine her competency?   To rely on the minor's testimony as defendants seek, for purposes of granting them summary judgment and dismissing plaintiffs' action, obviously will preclude the trial judge from making this determination for purposes of the trial.

For purposes of the pending dispositive motions, plaintiff Quinones already was sworn and testified, without plaintiffs' or any other party's objection.   While objections to a witness' competency are not waived by the failure to pose them before or during her deposition as she responded to questions, C.P.L.R. § 3115(d), the action is now at a potentially dispositive juncture.   Neither at the deposition, nor in the context of these motions, have plaintiffs or any other party raised any question, based on the opportunity for “closehand observation” they had at the deposition, that the minor did not have the capacity or intelligence to understand and respond to any question posed or to recall and accurately recount material facts.   People v. Parks, 41 N.Y.2d at 46, 390 N.Y.S.2d 848, 359 N.E.2d 358.

The context here departs from the authority governing criminal trials in critical respects.   A deposition upon oral questions is not a discovery device in criminal actions, e.g., N.Y.Crim. Proc. Law § 240.20, so there is no opportunity before the trial for “closehand observation” of a child witness and scrutiny of her capacity and intelligence.  People v. Parks, 41 N.Y.2d at 46, 390 N.Y.S.2d 848, 359 N.E.2d 358.   Here, although the court had no such opportunity except study of the transcript and corroborating or conflicting evidence, the parties had a thorough opportunity.   Concomitantly, there is no analogy in criminal actions to the summary dispositions upon admissible evidence, routinely sought, and for which the parties therefore must be prepared, in civil actions.

In addition, while one side, here defendants, seeks to rely on the minor's testimony against the other side, unlike the prosecution relying on its complaining witness as an accuser against the other side, defendants rely not on their own witness, but on the other side's own witness, plaintiff Quinones.   Most critically, and perhaps the explanation for plaintiffs' reluctance to raise a competency issue, if plaintiffs are to prevail, they must rely on the minor's testimony as well.   Although her mother, plaintiff Alcantara, was present for the material events, neither side has found her recollection and account sufficiently useful to rely on her, despite her capacity as an adult, to support the parties' positions.   Hence the minor is the witness on whom all parties must rely if they are to establish their claims or defenses.

Keeping the age of the key witness foremost in mind, the court finds no hint in the record that she was confused by the questions posed to her or had any difficulty expressing her recollection of the material events or her intended meaning.   Nothing in the plaintiff mother's testimony or anywhere else in the record is in any way inconsistent with or otherwise casts any doubt on the certainty of the minor plaintiff's testimony.   See Totan v. Board of Educ. of City of NY, 133 A.D.2d 366, 369, 519 N.Y.S.2d 374 (2d Dep't 1987).   In fact the mother corroborates both that the snow was “spread” over the part of the sidewalk where her daughter fell, Aff. of David Holmes, Ex. G at 17, and that “more snow” had fallen “on top” of the snow that had been shovelled and salted.  Id. at 20.   This careful scrutiny provides assurance even where no issue was raised regarding the daughter's competency.

 In these circumstances, in the context of summary judgment motions, where the parties against whom a minor's testimony is used raised no objection to the testimony and also must rely on it, the court, after scouring the record for uncertainty in the testimony and finding none, may rely on a sworn 12 year old's account, without her appearance and further examination.   Consequently, based on the admission that no shovelling was observed in the area where plaintiff Quinones fell and that no additional salt had been spread there since she had walked there hours earlier, the Caballero defendants, at least, establish defendants' freedom from liability.

Plaintiffs, in rebuttal, fail to present any contrary evidence from which defendants' liability for negligent efforts at snow removal or treatment may be inferred.  Rios v. Acosta, 8 A.D.3d at 184, 779 N.Y.S.2d 469.   See Prenderville v. International Serv. Sys., Inc., 10 A.D.3d at 338, 781 N.Y.S.2d 110;  Tucciarone v. Windsor Owners Corp., 306 A.D.2d at 163, 761 N.Y.S.2d 181. While defendants' own testimony, limited to their customary snow removal and salting measures, rather than any such measures the day plaintiff Quinones was injured, is not the evidence that establishes their freedom from liability, neither does their testimony provide any basis for inferring their negligence.   Therefore the court grants the Caballero defendants' cross-motion for summary judgment.  C.P.L.R. § 3212(b).

V. DEFENDANT MILLS'S MOTION

Although defendant Mills mischaracterizes plaintiff Quinones's testimony so as to raise an inference of defendants' negligence, Mills does rely on Quinones's deposition, which when scrutinized nowhere raises such an inference.   Nevertheless, Mills's motion suffers from another fatal defect.

 “A motion for summary judgment shall be supported ․ by a copy of the pleadings.”  C.P.L.R. § 3212(b) (emphasis added).  “The pleadings” means “all of the pleadings.”  Welton v. Drobnicki, 298 A.D.2d 757, 749 N.Y.S.2d 288 (3d Dep't 2002);  Hamilton v. City of New York, 262 A.D.2d 283, 691 N.Y.S.2d 108 (2d Dep't 1999).   Defendant Mills, in her motion for summary judgment, fails to present the Caballero defendants' answer, including a cross-claim against Mills.   Where the moving party fails to include copies of all the pleadings in her motion papers, the court is constrained to deny the motion for that reason alone.  State of New York v. Metz, 241 A.D.2d 192, 198, 671 N.Y.S.2d 79 (1st Dep't 1998);  Nationwide Mut. Ins. Co. v. Piper, 286 A.D.2d 903, 904, 731 N.Y.S.2d 409 (4th Dep't 2001);  DiSano v. KBH Constr. Co., 280 A.D.2d 951, 952, 721 N.Y.S.2d 200 (4th Dep't 2001);  Deer Park Assocs. v. Robbins Store, 243 A.D.2d 443, 665 N.Y.S.2d 286 (2d Dep't 1997).   The cross-moving Caballero defendants, however, present their own answer and expressly rely on Mills's answer presented in her motion.

Nor may the court avoid this requirement as to defendant Mills by resorting to her alternative ground for summary judgment and considering it under C.P.L.R. § 3126, which for disobedience of a disclosure order authorizes:

such orders ․ as are just, among them:

․

(3) ․ dismissing the action or any part thereof, or rendering a judgment by default against the disobedient party.

Defendant Mills claims plaintiff Quinones failed to appear for a physical examination by October 10, 2004, as Justice Roman ordered August 10, 2004.   That order already determines the penalty for noncompliance:  plaintiff's preclusion from offering any evidence at trial regarding her physical condition.   While that preclusion's consequences may be tantamount to dismissal of plaintiffs' action, application of C.P.L.R. § 3212(b), if not a trial, is required to achieve that judgment.

Moreover, defendant Mills has not established plaintiffs' refusal or wilful failure to obey the August 2004 order.  C.P.L.R. § 3126;  Cespedes v. Mike & Jac Trucking Corp., 305 A.D.2d 222, 758 N.Y.S.2d 489 (1st Dep't 2003);  Fairbanks Capital Corp. v. Nagel, 289 A.D.2d 99, 100-101, 735 N.Y.S.2d 13 (1st Dep't 2001);  Hassan v. Manhattan & Bronx Surface Tr. Operating Auth., 286 A.D.2d 303, 304, 730 N.Y.S.2d 286 (1st Dep't 2001).   Defendants admit, through the Caballero defendants' attorney, that their insurer retained D & D Associates to arrange for plaintiff Quinones's physical examinations, so it transmitted any notices to plaintiffs' attorney of those examinations' time and place.   The record contains only the affirmation of the Caballeros' attorney, Holmes Aff., Ex. D, see Jenkins v. Alexander, 9 A.D.3d 286, 288, 780 N.Y.S.2d 133 (1st Dep't 2004);  Fernandez v. City of New York, 272 A.D.2d 71, 707 N.Y.S.2d 834 (1st Dep't 2000);  Perez v. Brux Cab Corp., 251 A.D.2d 157, 159, 674 N.Y.S.2d 343 (1st Dep't 1998), and no evidence on personal knowledge that such notices were transmitted to or received by plaintiffs or their attorney before the scheduled appointments. 8112-24 18th Ave. Realty Corp. v. Aetna Cas. & Sur. Co., 240 A.D.2d 287, 288, 659 N.Y.S.2d 17 (1st Dep't 1997);  Residential Holding Corp. v. Scottsdale Ins. Co., 286 A.D.2d 679, 680, 729 N.Y.S.2d 776 (2d Dep't 2001);  A & S Med., P.C. v. Allstate Ins. Co., 2002 N.Y. Slip Op. 50121[U], 2002 WL 576078 at *1 (App. Term 1st Dep't Apr. 3, 2002).

VI. SEARCHING THE RECORD

 In deciding a summary judgment motion, the court may search the record and grant summary judgment to any other party entitled to judgment even if that party has not moved for that relief.  C.P.L.R. § 3212(b);  Maheshwari v. City of New York, 2 N.Y.3d 288, 293 n. 2, 778 N.Y.S.2d 442, 810 N.E.2d 894 (2004);  Merritt Hill Vineyards v. Windy Hgts. Vineyard, 61 N.Y.2d 106, 111, 472 N.Y.S.2d 592, 460 N.E.2d 1077 (1984).   Defendant Mills's motion, having failed to satisfy C.P.L.R. § 3212(b)'s requirements, presents the question whether the court may treat a party who unsuccessfully moves for summary judgment the same way as a non-moving party and search the record to grant the unsuccessful moving party summary judgment as well.

 The court may search the record to dismiss an entire action or particular claim where warranted, despite a party's failure to seek that relief, Ruggiero v. Cardella Trucking Co., 16 A.D.3d 342, 343-44, 793 N.Y.S.2d 337 (1st Dep't 2005);  McDougal v. Apple Bank for Sav., 200 A.D.2d 418, 419, 606 N.Y.S.2d 215 (1st Dep't 1994);  Hernandez v. Linhart, 290 A.D.2d 534, 535, 736 N.Y.S.2d 695 (2d Dep't 2002);  Wolfson v. Milillo, 262 A.D.2d 636, 637, 692 N.Y.S.2d 679 (2d Dep't 1999), and do so to grant complete relief to parties united in interest.  J & A Vending v. J.A.M. Vending, 303 A.D.2d 370, 374, 757 N.Y.S.2d 52 (2d Dep't 2003).   Logically, the determination of whether or not anyone had undertaken snow removal or treatment where plaintiff Quinones was walking after the snow started falling on the day she was injured applies equally to all defendants.   While the moving defendant and cross-moving defendants here are adjacent owners of property abutting the sidewalk where plaintiff fell and thus not united in interest, they share a common position.   The undisputed evidence, that no one had undertaken snow removal or treatment where plaintiff was walking when she fell, absolves all abutting property owners, hence all defendants, of plaintiffs' claims.

Given that the purpose of searching the record is judicial economy, granting summary judgment to an unsuccessful moving party is as consistent with C.P.L.R. § 3212(b) as granting summary judgment, in the typical situation, to a non-moving party.   Therefore the court finds that the record demonstrates all defendants' entitlement to judgment as a matter of law, which plaintiffs failed to rebut.

In sum, the court grants all defendants summary judgment and dismisses the complaint.   This decision constitutes the court's order and judgment of dismissal.   The court will mail copies to the parties' counsel.

LUCY BILLINGS, J.