Skura v. WojtlowskiSkura v. Wojtlowski
John H. Mulvehill, Saint James, NY, for appellant.
Stewart H. Friedman, New York, NY (David M. Reilly of counsel), for respondents Jean Piedmonte-Lehman and Thomas C. Lehman.
Richard T. Lau (Picciano & Scahill, P.C., Bethpage, NY [Andrea E. Ferrucci], of counsel), for defendants Richard T. Wojtlowski and Richard Wojtlowski.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (David T. Reilly, J.), dated September 5, 2017. The order, insofar as appealed from, granted that branch of the cross motion of the defendants Jean Piedmonte-Lehman and Thomas C. Lehman which was for summary judgment dismissing the complaint insofar as asserted against them.
ORDERED that the order is affirmed insofar as appealed from, with one bill of costs to the respondents Jean Piedmonte-Lehman and Thomas C. Lehman.
On October 31, 2013, the plaintiff was a passenger in a vehicle operated by the defendant Jean Piedmonte-Lehman and owned by the defendant Thomas C. Lehman (hereinafter together the Lehman defendants). The plaintiff allegedly sustained injuries in a multi-vehicle chain-reaction collision when the Lehman defendants’ vehicle, which was stopped or slowly coming to a stop at an intersection due to traffic conditions, was struck in the rear by a vehicle operated by the defendant
Issue was promptly joined by the Lehman defendants, whose answer was accompanied by various discovery demands. On December 8, 2016, the Lehman defendants received the plaintiffs’ bill of particulars. Although most of the 31 generic allegations of negligence against the defendants set forth therein involved the operation of their vehicles, the plaintiff also alleged that the Lehman defendants were negligent “in failing to maintain a proper seatbelt; in failing to maintain a proper shoulder harness; [and] in failing to maintain a proper airbag.” However, there is no evidence in the record that the plaintiff ever sought to preserve or inspect the Lehman defendants’ vehicle at any time prior to or during this litigation; nor did the preliminary conference order executed by the parties in this action provide for such an inspection.
The preliminary conference was held on December 20, 2016. It is undisputed that the plaintiff delivered various authorizations and more than 1,000 pages of reports and medical records to the Lehman defendants on February 8, 2017. During the ensuing motion practice among the parties, and insofar as relevant to this appeal, the Lehman defendants cross-moved on April 28, 2017, for summary judgment dismissing the complaint insofar as asserted against them, contending that they were not at fault in the happening of the accident because, according to the plaintiff‘s own account of events, their vehicle
The plaintiff opposed the cross motion, arguing that it was premature and that an issue of fact existed as to whether Piedmonte-Lehman‘s actions contributed to the accident. In addition, the plaintiff submitted her own affidavit, asserting for the first time, and in contrast to the statement she gave to the police, that “[w]hen I got into the vehicle at the front passenger seat I found the shoulder harness was stretched out and it did not properly restrain me.” She also stated that “[w]hen the accident occurred the airbag did not go off,” and she surmised that Piedmonte-Lehman knew that “the seatbelt and airbag [were] defective” because she told the plaintiff to “hold on” immediately before the collision.
In reply, counsel for the Lehman defendants argued that the plaintiff‘s submissions were speculative and insufficient to raise a triable issue of fact in opposition to the Lehman defendants’ prima facie showing of their entitlement to summary judgment. Counsel further maintained that the cross motion for summary judgment was not premature, and that no showing had been made that further discovery would yield any relevant evidence of liability on the part of the Lehman defendants. In an order dated September 5, 2017, the Supreme Court, inter alia, granted that branch of the cross motion which was for summary judgment dismissing the complaint insofar as asserted against the Lehman defendants. The plaintiff appeals from that portion of the order.
A rear-end collision with a stopped or stopping vehicle creates a prima facie case of liability with respect to the operator of the moving vehicle and imposes a duty on that operator to provide a non-negligent explanation for the collision (see Edgerton v City of New York, 160 AD3d 809, 810; Lewis v City of New York, 157 AD3d 879, 879-880; Figueroa v MTLR Corp., 157 AD3d 861, 862). “In chain collision accidents, the operator of the middle vehicle may establish prima facie entitlement to judgment as a matter of law by demonstrating
Here, the Lehman defendants submitted evidence on their cross motion establishing that their stopped or slowing vehicle was struck in the rear by the Wojtlowski defendants’ vehicle, thereby demonstrating the Lehman defendants’ prima facie entitlement to judgment as a matter of law by showing that they were not at fault in the happening of the accident (see Pomerantsev v Kodinsky, 156 AD3d 656, 657-658; Wooldridge-Solano v Dick, 143 AD3d 698, 699-700; Chuk Hwa Shin v Correale, 142 AD3d at 519). The submissions by the Wojtlowski defendants and by the plaintiff in opposition to the cross motion were speculative in nature and failed to raise a triable issue of fact (see generally Kandel v FN; Taxi; Inc., 137 AD3d 980, 982; Conning v Dietrich, 105 AD3d 884, 885).
The plaintiff‘s speculative assertions that the safety devices in the Lehman defendants’ vehicle were defective were insufficient to raise a triable issue of fact. Under the circumstances of this case, the plaintiff‘s mere statement that a defect existed because the shoulder harness was purportedly loose at the time she first entered the vehicle, an observation that was not included in the sworn statement she gave to the police describing herself as being “belted into” the vehicle at the time of the accident, was conclusory in nature and therefore insufficient to raise an issue as to whether the seatbelt and harness were mechanically defective. Likewise, her conclusory claim that the airbag must have been defective because it did not deploy during the accident, without supporting evidence, did not establish a defect in that device. Furthermore, the plaintiff did not demonstrate that she possessed the requisite expertise to render an opinion as to whether the safety devices were defective (see generally Matott v Ward, 48 NY2d 455, 459; cf. Mack-Cali Realty, L.P. v Everfoam Insulation Sys., Inc., 110 AD3d 680, 681-682). Nor did the plaintiff submit an expert affidavit reaching such a conclusion based on the plaintiff‘s account of the accident.
Additionally, aside from the lack of evidence of a defect, the plaintiff offered only speculation regarding whether the Lehman defendants had notice or knowledge of any such alleged defects (see generally Amster v Kromer, 150 AD3d 804, 805). Accordingly, the plaintiff‘s submissions failed to raise a
Finally, while a party is entitled to a reasonable opportunity to conduct discovery in advance of a summary judgment determination (see Salameh v Yarkovski, 156 AD3d 659, 660; Bernstein v New York City Tr. Auth., 153 AD3d 897, 897-898), “[a] party contending that a summary judgment motion is premature must demonstrate that discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant” (Antonyshyn v Tishman Constr. Corp., 153 AD3d 1308, 1310, quoting MVB Collision, Inc. v Progressive Ins. Co., 129 AD3d 1040, 1041). Here, the plaintiff did not satisfy her burden of demonstrating that the Lehman defendants’ cross motion for summary judgment was premature, since “[t]he mere hope or speculation that evidence sufficient to defeat the motion might be uncovered during discovery is an insufficient basis for denying the motion” (CitiMortgage, Inc. v Guillermo, 143 AD3d 852, 854; see Cohen v Lebgutt Realty, LLC, 158 AD3d 740, 741; Chou v Ocean Ambulette Serv., Inc., 131 AD3d 1091, 1093; Seuro-Sosa v Cardona, 112 AD3d 706, 708).
Accordingly, we agree with the Supreme Court‘s determination granting that branch of the Lehman defendants’ cross motion which was for summary judgment dismissing the complaint insofar as asserted against them.
MASTRO, J.P., DILLON and IANNACCI, JJ., concur.
CONNOLLY, J., dissents, and votes to reverse the order insofar as appealed from, on the law, and deny that branch of the cross motion of the defendants Jean Piedmonte-Lehman and Thomas C. Lehman which was for summary judgment dismissing the complaint insofar as asserted against them, as premature, with leave to renew upon the completion of discovery, with the following memorandum:
In my view, the cross motion of the defendants Jean Piedmonte-Lehman and Thomas C. Lehman for summary judgment was premature, and should have been denied with leave to renew upon the completion of discovery. Accordingly, I respectfully dissent.
The plaintiff allegedly was injured in a motor vehicle accident when the vehicle in which she was a passenger, owned and operated by the defendants Jean Piedmonte-Lehman and Thomas C. Lehman (hereinafter together the Lehman defendants), was struck in the rear by a vehicle owned and operated by the defendants Richard T. Wojtlowski and Richard Wojtlowski (hereinafter together the Wojtlowski defendants), and propelled forward into a third vehicle.
Difficulties in scheduling discovery initiated a flurry of motions and cross motions, with the Lehman defendants moving to dismiss the complaint, the plaintiff moving to strike the Lehman defendants’ answer, and the Wojtlowski defendants separately moving to dismiss the complaint.
While those motions were pending, the Lehman defendants evidently changed their position as to whether they needed discovery to defend the action, and they cross-moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against them, arguing that they were not negligent, as the Lehman defendants’ vehicle was stopped when it was hit in the rear by the Wojtlowski defendants’ vehicle. Further, the Lehman defendants sought to establish that their vehicle was properly maintained. In an affidavit in support, Piedmonte-Lehman averred:
“I was a regular operator of the 2001 Chrysler motor vehicle that I was driving at the time of the accident and can affirmatively state without equivocation that the vehicle was in excellent mechanical condition at the time of the accident. Moreover, the vehicle had a valid and current New York State Inspection and all of it[s] safety features, including the rear brake lights, the seatbelts, and airbags were in full proper functioning condition.”
In opposition, the plaintiff argued, inter alia, that the Lehman defendants’ cross motion was premature, as depositions had not yet been conducted. Further, the plaintiff submitted an affidavit in which she stated: “When I got into the [Lehman defendants‘] vehicle at the front passenger seat I found the shoulder harness was stretched out and it did not properly restrain me.”
The Supreme Court, inter alia, granted that branch of the Lehman defendants’ cross motion which was for summary judgment dismissing the complaint insofar as asserted against them, and the plaintiff appeals from that portion of the order.
“A party should be afforded a reasonable opportunity to conduct discovery prior to the determination of a motion for
Alternatively, even assuming that the Lehman defendants’ cross motion was not premature, the plaintiff‘s averment that “the shoulder harness was stretched out and it did not properly restrain me” was sufficient to raise a triable issue of fact as to whether the vehicle was negligently maintained and whether such failure contributed to the plaintiff‘s injuries (see
My colleagues in the majority improperly hold the Lehman defendants to a lower standard of proof in meeting their prima facie burden for summary judgment than they place on the plaintiff to raise a triable issue of fact, which is contrary to the well-established principle that a party opposing a motion for summary judgment is entitled to more flexibility in meeting its evidentiary burden than the movant (see Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067-1068; Phillips v Kantor & Co., 31 NY2d 307, 312-313). For instance, although my colleagues in the majority hold that the plaintiff‘s averments regarding the seatbelt and airbag were conclusory, the plaintiff‘s averment that the seatbelt “was stretched out and did not properly restrain me,” was no more conclusory than Piedmonte-Lehman‘s averment that “the seatbelts, and airbags were in full proper functioning condition.”
Moreover, I disagree with the determination of my colleagues in the majority that the plaintiff‘s affidavit was conclusory in light of her sworn statement to the police that she was “belted into” the Lehman defendants’ vehicle. The plaintiff‘s sworn statement to the police was silent as to whether the seatbelt properly functioned during the accident, and it is improper for a court to infer from that silence anything regarding the functionality of the seatbelt. “The court‘s role on a motion for summary judgment is to determine whether there is a material factual issue to be tried, not to resolve it” (Sommer v Federal Signal Corp., 79 NY2d 540, 554).
Finally, the conclusion of my colleagues in the majority that the plaintiff‘s opposition papers were deficient only serves to further highlight that the cross motion was premature, as any additional facts regarding the vehicle‘s safety devices not set forth in the plaintiff‘s opposition affidavit, if they existed, would have been “exclusively within the knowledge and control of” the Lehman defendants (see Nachamie v County of Nassau, 147 AD3d 770, 774; see Blake v City of New York, 148 AD3d 1101, 1107; Baron v Incorporated Vil. of Freeport, 143 AD2d 792, 792-793). Accordingly, in my view, that branch of the Lehman defendants’ cross motion which was for summary judgment dismissing the complaint insofar as asserted against them should have been denied with leave to renew upon the completion of discovery.
ENTER:
Aprilanne Agostino
Clerk of the Court