KEENE v. LLC (2023)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Frederick D.R. Sampson, J.), entered May 21, 2020.  The order granted the motion of the defendant Nemet Motors, LLC, for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed, with costs.

In April 2014, the plaintiff, while walking out from a waiting room that was adjacent to a service/garage area at an automobile dealership owned by the defendant Nemet Motors, LLC (hereinafter Nemet Motors), allegedly was injured when he was struck by a motor vehicle owned and operated by the defendant Rafaela A. Rosas, a customer, as she was leaving the dealership.  The plaintiff commenced the instant action against the defendants to recover damages for personal injuries alleging, inter alia, that he was struck by Rosas's vehicle due to the negligence of Nemet Motors and/or its employees.

Nemet Motors moved for summary judgment dismissing the complaint insofar as asserted against it.  In an order entered May 21, 2020, the Supreme Court granted the motion, and the plaintiff appeals.

“ ‘To establish a prima facie case of negligence, a plaintiff must establish the existence of a duty owed by a defendant to the plaintiff, a breach of that duty, and that such breach was a proximate cause of injury to the plaintiff’ ” (Donatien v. Long Is. Coll. Hosp., 153 A.D.3d 600, 600, 57 N.Y.S.3d 422, quoting Alvino v. Lin, 300 A.D.2d 421, 421, 751 N.Y.S.2d 585;  see Greenbaum v. Bare Meats, Inc., 178 A.D.3d 775, 776, 111 N.Y.S.3d 890;  Ortega v. Liberty Holdings, LLC, 111 A.D.3d 904, 905, 976 N.Y.S.2d 147;  Rubin v. Staten Is. Univ. Hosp., 39 A.D.3d 618, 833 N.Y.S.2d 241).  If there is no duty of care owed by the defendant to the plaintiff, there can be no breach and, consequently, no liability can be imposed upon the defendant (see Pulka v. Edelman, 40 N.Y.2d 781, 782, 390 N.Y.S.2d 393, 358 N.E.2d 1019;  Donatien v. Long Is. Coll. Hosp., 153 A.D.3d at 601, 57 N.Y.S.3d 422).

Initially, contrary to the plaintiff's contention, surveillance video footage of the accident, which was submitted in support of the motion, was properly considered by the Supreme Court.  It is well-settled that a video recording “may be authenticated by the testimony of a witness to the recorded events ․ that the video[ ] accurately represents the subject matter depicted” (People v. Patterson, 93 N.Y.2d 80, 84, 688 N.Y.S.2d 101, 710 N.E.2d 665).  Here, the surveillance video was properly authenticated by one of the participants to the events, namely, the plaintiff.  When questioned about the surveillance video at his deposition, the plaintiff identified himself on the video and testified that it accurately depicted the accident, including the moments immediately before and after the impact.  Similarly, at her deposition, Rosas testified that she had previously seen the surveillance video, and that it accurately depicted the accident.  Nemet Motors, thus, laid a sufficient foundation for admissibility, and the court providently exercised its discretion in considering the video.

Nemet Motors established its prima facie entitlement to judgment as a matter of law by submitting, inter alia, the surveillance video and the transcripts of the parties’ deposition testimony, which demonstrated that the conduct of its employees was not a proximate cause of the accident.  Nemet Motors additionally established that any alleged failure to warn was not a proximate cause of the plaintiff's injuries because the danger inherent in motor vehicles passing through the dealership's garage/service area was “open and obvious or, at the least, readily discernible by use of the senses” (McMurry v. Inmont Corp., 264 A.D.2d 470, 471, 694 N.Y.S.2d 157).  Hence, under the circumstances of this case, “[a]ny warning would have only alerted [the plaintiff] to what he already knew” about the danger (Tkeshelashvili v. State of New York, 18 N.Y.3d 199, 205, 936 N.Y.S.2d 645, 960 N.E.2d 414;  see Sekkat v. Huitres NYC, Inc., 156 A.D.3d 738, 739, 67 N.Y.S.3d 217;  McMurry v. Inmont Corp., 264 A.D.2d at 471, 694 N.Y.S.2d 157).  In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).

Accordingly, the Supreme Court properly granted the motion of Nemet Motors for summary judgment dismissing the complaint insofar as asserted against it.

RIVERA, J.P., MILLER, CHRISTOPHER and TAYLOR, JJ., concur.