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Erik WESTGATE, Plaintiff, v. JIE YUAN HUANG, 72 Steel and Aluminum Works Inc.; Acar World Famous Transportation and Basic Storage Inc., Defendants.
Recitation as required by CPLR 2219(a) of the papers considered in the review of Motion
Sequence Numbers 002 & 003 Numbered
Notice of Motion by Plaintiff (002), 1
Notice of Cross Motion and Opposition by Defendant (003) 2
Affirmation in Opposition (to 003) and Reply (to 002) by Plaintiff 3
Reply Affirmation by Defendants Illyin 4
Upon the foregoing cited papers, the Decision and Order is as follows:
Plaintiff Erik Westgate moves by notice of motion (Seq. No. 002) for an order granting him summary judgment on the issue of liability and for a finding that the injuries he sustained were sufficient to satisfy the “Serious Injury” threshold set forth in Article 51 of the Insurance Law. Defendants Jie Yuan Huang and 72 Steel and Aluminum Works Inc. (“72 Steel”) oppose the Plaintiff's motion in its entirety and cross move (Seq. No. 003) for an order granting them summary judgment on the issue of liability.
It is an understatement that the facts of this case are unclear. Plaintiff was deposed on October 14, 2020 and a copy of his deposition transcript was annexed to Defendant's moving papers. Plaintiff testified that he was involved in a motor vehicle accident as a pedestrian on June 17, 2019. He claims that on the day of the accident he was working with his friend Mr. Gerard Demary, helping him remove vehicles from a “purple tractor-trailer.” After arriving at the dealership, he vaguely remembers that he exited the truck and then he remembers nothing else. According to Plaintiff, his recollection of the facts related to this incident are “all a blur” (Tr. 10/14/20, Pg. 27 L. 4-6). Specifically, Plaintiff could not recall the time and place of the alleged accident, where he was located in the street, how many lanes of travel there were, and how long before the accident he exited the truck. Perhaps most importantly, he could not recall any of the details relating to the alleged contact between himself and the Defendant's vehicle (Tr. 10/14/20, Pg. 29). Plaintiff testified that Mr. Demary was also injured in the accident, and that he obtained his understanding of how the accident happened from what Mr. Demary told him. However, Mr. Demary he has not provided an affidavit in support of the present motion, or offered testimony in this action.
Defendant has not yet testified in this action, but he has provided a handwritten affidavit in which he sets forth his version of the facts. The affidavit is sworn before a notary public, and indicates that he was assisted by a person named “Annie Yard” who works for his insurance company as English is not the Defendants native language. According to the Defendant, at the time and place of occurrence he was operating a 2006 GMC pickup truck on 86th Street. When the “incident” occurred, the Defendant was returning the pickup truck to his employer, Co-Defendant 72 Steel. Defendant claims that 86th Street is a two-lane street and that he was driving in the right lane when he came upon a double-parked vehicle. As he did not observe anyone near the vehicle, he proceeded around it and heard someone screaming. As he was “scared” by the screaming the Plaintiff stopped his vehicle and remained at the scene until the police arrived. The police were allegedly called by a “business across the street.” Defendant asserts that he did not feel an impact to his vehicle, that he did not see anyone until after the accident, and that he believes that his “vehicle did not touch” the Plaintiff. In sum and substance, the Defendant denies contact between his vehicle and the Plaintiff.
In addition to sworn affidavits prepared by both parties, the Plaintiffs have annexed a copy of the MV-104 police accident report from the incident at issue. While police accident reports are generally inadmissible, they may contain admissible “admissions against party interest.” See e.g. Scott v. Kass, 48 AD3d 785 (2d Dept. 2008). Here, the accident report contains a statement from the Defendant that “he did not see the pedestrians.” Normally a statement that a driver did not see a pedestrian would be an admissible statement against interest. However, here, that exception to the hearsay rule is not so clear. Defendant continues to assert that he did not see any pedestrians, or come into contact with any pedestrians. Accordingly, the statement in the accident report is not necessarily a statement against interest because the Defendant feels that it is exculpatory.1 See Heiney v. Pattillo, 76 AD2d 855 (2d Dept. 1980); see also Cover v. Cohen, 61 NY2d 261 (1984). In any event the balance of the police accident report is clearly inadmissible. See Coronado v. Veolia N. Am. Inc., 188 AD3d 524 (1st Dept. 2020); see also Jimenez v. Ramirez, 171 AD3d 902 (2d Dept. 2019). Moreover, any statement in the report attributed to the Defendant is subject to question, as he has indicated that he couldn't accurately express himself to the police officers due to a language barrier.
The proponent of a summary judgment motion has the initial burden of making a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient admissible evidence to eliminate any material issues of fact from the case. See Otty Cab Corp. v. Nazir, 72 N.Y.S.3d 517 (2d Dept. 2017). A movant's burden can be satisfied by the submission of sworn affidavits in proper evidentiary form. See Charlie Fox, Inc. v. Diallo, 48 N.Y.S.3d 264 (2d Dept. 2016). Once a prima facie showing of entitlement to summary judgment has been established, the burden shifts to the non-moving party or parties to raise a material issue of fact. See Ubillus-Tambini v. Ischakov, 36 N.Y.S.3d 410 (2d Dept. 2016). As the Court's function on a motion for summary judgment is to determine whether issues of fact exist, not to resolve those issues or determine matters of credibility, the facts alleged by the opposing party and all inferences that may be drawn from those facts are generally accepted as true. See Roth v. Barreto, 289 AD2d 557 (2d Dept. 2001); see also Rubin v. Napoli Bern Ripka Shkolnik, LLP, 179 AD3d 495 (1st Dept. 2020).
The proponent of a summary judgment motion has the initial burden of establishing his or her entitlement to a judgment as a matter of law by tendering evidence sufficient to eliminate any material issues of fact. See Monitor Holding Corp. v. I.B. Distrib. Corp., 2020 NY Slip Op 08057 (2d Dept. 2020). Here, Plaintiff has failed to meet that burden. The Affidavit of Erik Westgate contains only the conclusory statement that “while [he] was a pedestrian on the roadway, a motor vehicle operated by Jie Yuan Huang struck [him] and knocked [him] to the ground.” This statement, standing alone, is insufficient to eliminate all issues of fact as it does not specifically establish “how the accident occurred, where the accident occurred, and whether the defendant driver was negligent.” See Kaziu v. Human Care Servs. For Families & Children, Inc., 167 AD3d 588 (2d Dept. 2018); see also Searless v. Karczewski, 153 AD3d 957 (2d Dept. 2017). Moreover, the Plaintiff's affidavit is belied by his deposition testimony wherein he indicates that he cannot recall how, or where, the accident happened. See e.g. McNally v. Sabban, 32 AD3d 340 (1st Dept. 2006). Plaintiff specifically testified that he could not recall being struck, or knocked to the ground. Plaintiff further testified that he obtained his understanding of how the accident happened from others, specifically from Mr. Demary (Tr. 10/14/20 pg. 30). Thus, the statement in the Plaintiff's affidavit is necessarily based upon hearsay and speculation and is insufficient to establish his burden on a summary judgment motion. See Stock v. Otis El. Co. 52 AD3d 816 (2d Dept. 2008); see also Rodriguez v. Sixth President, Inc., 4 AD3d 406 (2d Dept. 2004); Bouche v. Haq, 2014 NY Slip Op 30423(U) (Sup. Ct. Suffolk Cty. 2014).
As the Plaintiff has failed to established his entitlement to summary judgment as a matter of law, it is generally unnecessary to consider the Defendant's opposition papers. See Gaudio v. City of New York, 2020 NY Slip Op 08041 (2d Dept. 2020). However, as the Defendant has cross moved for summary judgment, his version of the events must also be considered. Defendant offers an affidavit in which he admits driving on 86th Street, admits moving around a double parked vehicle in the roadway, and admits to hearing a scream, but denies seeing, or coming into contact with any pedestrians. As with Plaintiff, the Court finds that the Defendants affidavit, standing alone, is insufficient to establish the Defendant's initial burden of eliminating all material issues of fact from this case. See Winegrad v. NY Univ. Med. Ctr., 64 NY2d 851 (1985). While the Defendant states that he does not believe that he struck anyone, he has not conclusively established that he did not. There is clearly a question of fact as to whether or not he came in contact with the Plaintiff, and credibility issues can only be decided by a trier of fact. See Gulf Ins. Co. v. Transatlantic Reins. Co., 69 AD3d 71 (1st Dept. 2009). Accordingly, the Defendant's cross motion for summary judgment on the issue of liability is also denied.
In essence, this Court is faced with two litigants who have (at best) an incomplete understanding of the events that occurred on June 17, 2019. Plaintiff cannot recall the events at all, and the Defendant admits that something happened which made him stop at the scene, but did not feel an impact and does not “believe” that he struck anyone with his vehicle. However, both parties have identified that there were multiple witnesses at the scene of the accident who could possibly shed light on what took place. Specifically, the Plaintiff has indicated that his friend, Mr. Gerard Demary, not only witnessed the entire incident but was injured himself. Accordingly, it would be prudent for both parties to secure the testimony of Mr. Demary. In addition, the incident was allegedly witnessed by a nearby business owner who called the police, and the accident aftermath by the police officers. Accordingly, both motions are hereby denied as premature as there is outstanding discovery which would likely clarify how, or if, this accident occurred. See Cantor-Sanchez v. Gonzalez-Socarras, 2020 NY Slip Op 07344 (2d Dept. 2020); see also Tamburello v. Rubino, 187 AD3d 1092 (2d Dept. 2020). These denials are without prejudice for the motions to be renewed at the conclusion of discovery, if supportable by facts and law.
In addition to issues of liability, Plaintiff also moves for summary judgment on the threshold issue of whether or not he sustained a serious injury as a result of this accident. See Ins. Law § 5102(d). Plaintiff has offered testimony that he underwent surgery to repair a fracture of his “right bicondylar tibial plateau.” Insurance Law § 5102 sets forth a number of injuries that qualify as a “serious injury.” The Plaintiff's fracture, would certainly qualify as one of those injuries. See e.g. Gould v. Ombrellino, 57 AD3d 608 (2d Dept. 2008). However, in order to establish threshold, the Plaintiff must not only show that he sustained a serious injury, but also that said injury was causally related to the accident. See Alexander v. Gordon, 95 AD3d 1245 (2d Dept. 2012). As here, there are differing various of how the accident happened, or even if the accident happened at all, the motion seeking summary judgment on the issue of threshold must also be denied, without prejudice as the plaintiff cannot establish causation as a matter of law. See Heumann v. JACO Transp., Inc. 82 AD3d 1046 (2d Dept. 2011).
This constitutes the Decision and Order of the Court on all issues raised in relation to motion sequence numbers 002 and 003. Any issue that was raised in either motion, and not specifically addressed herein, is hereby denied without prejudice. As both summary judgment motions have been denied, the parties are hereby directed to comply with the discovery orders of this Court, serve any additional discovery demands that might be relevant in light of this Decision and to appear for a compliance conference on March 5, 2021 at 11:00 AM. The previously selected conference date of January 25, 2021 is hereby vacated.
1. As the Defendant would not have seen any pedestrians if his assertion that he did not strike anyone with his vehicle is correct.
Catherine M. DiDomenico, J.
Response sent, thank you
Docket No: 152552/2019
Decided: January 14, 2021
Court: Supreme Court, Richmond County, New York.
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