Opinion
17594/07.
Decided March 10, 2008.
Plaintiff moves seeking an Order granting her partial summary judgment on the issue of liability over and against defendants. Plaintiff avers that insofar as she was not negligent in relation to the instant accident and defendants were negligent, she is entitled to summary judgment as a matter of law. Defendants oppose the instant motion and cross-move seeking an Order granting them summary judgment over and against plaintiff. Defendant's aver that to the extent that they were confronted with an emergency in relation to the accident herein, their actions were reasonable under the circumstances and as such, they are entitled to summary judgment as a matter of law. Plaintiff opposes defendants' cross-motion averring that questions of fact preclude summary judgment.
For the reasons that follow hereinafter, plaintiff's motion is hereby denied and defendants' cross-motion is granted.
The instant action is for alleged personal injuries. The complaint alleges that on March 26, 2007, plaintiff was injured when while a passenger in a non-party's vehicle, she was involved in an accident with a vehicle owned and operated by defendants. It is alleged that the accident occurred at the intersection of North Drive and Parking Lot 800 Central Park Avenue, Yonkers, NY. It is alleged that defendants were negligent in the ownership and operation of their vehicle and that as a result of said negligence, plaintiff was injured.
In support of her motion and in opposition to defendants' cross-motion, plaintiff submits an affidavit wherein she states, in pertinent part, as follows. On March 26, 2007 at 11:54 AM, she was involved in an accident at the intersection of North Drive at or near its intersection with Parking Lot 800 Central Park Avenue, Yonkers, NY. Plaintiff was a passenger and was proceeding northbound. She was involved in an accident with a vehicle operated by defendant FRESIA MACLAS (Fresia). The accident was caused by defendants' negligence and plaintiff did nothing to cause the same.
Plaintiff submits an uncertified copy of a police accident report and several photographs. No foundation for the same's admission is laid.
In opposition to plaintiff's motion and in support of their cross-motion defendants submit an affidavit from Fresia wherein she states, in pertinent part, as follows. On March 26, 2007, after a shopping trip at the Cross County Mall, she was operating her car and driving though the parking lot. As Fresia approached a curved area of the parking lot, she was involved in accident with a vehicle in which plaintiff was a passenger. The curved area was abutting a grassy area upon which snow had been piled obstructing Fresia's view of traffic traveling beyond the curve. Fresia observed plaintiff's vehicle as it rounded the curve and approached her vehicle. Plaintiff's vehicle veered left into Fresia's lane of travel. Fresia steered her vehicle as far right as possible but could go no further as there was a fence thereat. Plaintiff's vehicle struck Fresia's vehicle.
The Law and Standard on Summary Judgment
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 NY2d 320 (1986); Zuckerman v. City of New York, 49 NY2d 557 (1980). There is no requirement that the proof for said motion be submitted in affidavit form, rather, the requirement is that the evidence proffered be in admissible form. Muniz v. Bacchus, 282 AD2d 387 (1st Dept. 2001). Accordingly, affirmations from attorneys having no personal knowledge of the facts are not evidence and offer nothing more than hearsay. Reuben Israelson v. Sidney Rubin, 20 AD2d 668 (2nd Dept. 1964); Erin Federico v. City of Mechanicville, 141 AD2d 1002 (3rd Dept. 1988); Harry L. Cohen v. Genesee Supply Co., 7 AD2d 886 (4th Dept. 1959). Consequently, any such submissions are inadmissible and cannot be the basis for creating an issue of fact sufficient to preclude summary judgment. Johnson v. Phillips, 161 AD2d 269 (1st Dept. 1999); Rue v. Stokes, 191 AD2d 245 (1st Dept. 1993).
Once movant meets his initial burden, the burden shifts to the opponent, who must then produce sufficient evidence, also in admissible form, to establish the existence of a triable issue of fact. Zuckerman v. City of New York, 49 NY2d 557 (1980). The burden, however, always remains where it began, with the movant on the issue. Hence, "if the evidence on the issue is evenly balanced, the party that bears the burden must lose." Director Office of Workers Compensation Programs v. Greenwich Collieris, 512 U.S. 267 (1994); 300 East 34th Street Co. v. Habeeb, 248 AD2d 50 (1st Dept. 1997).
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. On this issue the Court of Appeals has stated
[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. (Internal citations omitted).
Friends of Animals v. Associated Fur Manufacturers, Inc., 46 NY2d 1065, 1067-1068 (1979). Accordingly, generally, the opponent of a motion for summary judgment seeking to have the court consider inadmissible evidence must proffer an excuse for proffering the inadmissible evidence in inadmissible form. Johnson v. Phillips, 161 AD2d 269 (1st Dept. 1999). Additionally, while evidence inadmissible when the motion is made and inadmissible when the case is tried, is insufficient to raise an issue of fact precluding summary judgment; inadmissible evidence, whose inadmissability has been excused and which may likely be admissible at trial, may be considered. Phillips v. Joseph Kantor Company, 31 NY2d 307 (1972). In Phillips, for example, the court discussed that in lieu of affidavits from actual witnesses, detailing the substance of their testimony, affidavits listing witnesses' names, the substance of their testimony, and how said witnesses acquired their knowledge, could be considered and could raise an issue of fact sufficient to defeat summary judgment. Id. Similarly, in Zuckerman v. City of New York, 49 NY2d 557 (1980), the court discounted an attorney affirmation as speculative, in that said attorney lacked no personal knowledge of the facts he was proffering. Id. The court, however, in recognizing that inadmissible evidence could be used to preclude summary judgment, stated that if said attorney had personal knowledge of a witness' testimony and that witness' testimony created an issue of fact, said affirmation would suffice to defeat summary judgment. Id.; See, Indig v. Finkelstein, 23 NY2d 728 (1968); Graso v. Angerami, 79 NY2d 813 (1991).
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 AD2d 811 (4th Dept. 2000):
Supreme Court erred in resolving issues of credibility in granting defendants' motion for summary judgment dismissing the complaint (see, Mickelson v. Babcok, 190 AD2d 1037, 593 NYS2d 657; see generally, Black v. Chittenden, 69 NY2d 665, 511 NYS2d 833, 503 NE2d 1370; Capelin Assocs. v. Globe Mfg. Corp., 34 NY2d 338, 34,1 357 NYS2d 478, 313 NE2d 776). Any inconsistencies between the deposition testimony of plaintiffs and their affidavits submitted in opposition to the motion present issues for trial(see, Schoen v. Rochester Gas Elec., 242 AD2d 928, 665 NYS2d 372; Mickelson v. Babcock, supra). See also, Yaziciyan v. Blancato, 267 AD2d 152 (1st Dept. 1999); Perez v. Bronx Park Associates, 285 AD2d 402 (1st Dept. 2001); Glick Dullock v. Tri-Pac Export Corp., 22 NY2d 439 (1968); Singh v. Kolcaj Realty Corp., 283 AD2d 350 (1st Dept. 2001).
Accordingly, the Court's function when determining a motion for summary judgment is issue finding and not issue determination. Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395 (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 NY2d 223 (1978). When the existence of an issue of fact is even debatable, summary judgment should be denied. Stone v. Goodson, 8 NY2d 167 (1960). It is well established that inadmissable hearsay is insufficient to raise any triable issues of fact sufficient to defeat summary judgment. Schwartz v. Nevatel Communications Corp., 778 NY2d 308 (2nd Dept. 2004); Zuckerman v. City of New York, 49 NY2d 557 (1980).
Self serving affidavits, meaning those which contradict previous deposition testimony, will not be considered by the Court in deciding summary judgment and cannot raise a triable issue of fact sufficient to defeat summary judgment. Lupinsky v. Windham Construction Corp., 293 AD2d 317 (1st Dept 2002); Joe v. Orbit Industries, Ltd., 269 AD2d 121 (1st Dept. 2000); Kistoo v. City of New York, 195 AD2d 403 (1st Dept. 1993).
A defendant seeking summary judgment must establish prima facie entitlement to such relief as a matter of law, with evidence demonstrating the merits of the claim or defense, and not merely by pointing to gaps in plaintiff's proof. Mondello v. DiStefano , 16 AD3d 637 (2nd Dept. 2005); Peskin v. New York City Transit Authority, 304 AD2d 634 (2nd Dept. 2003).
Motor Vehicle Accidents
In cases alleging negligence as the result of a motor vehicle accident, a plaintiff establishes prima facie entitlement to summary judgment by demonstrating that the defendant was negligent and that said negligence was the proximate cause of the accident. Bodner v. Greenwald, 296 AD2d 564 (2nd Dept. 2000); Maxwell v. Land-Saunders, 233 AD2d 303 (2nd Dept. 1996).
In the absence of evidence to the contrary, a defendant who establishes that he was not negligent in the operation of his vehicle is entitled to summary judgment. Cerda v. Parsley, 273 AD2d 339 (2nd Dept. 2000). In Cerda, the court, in discussing a rear end collision, found that the defendant established that she had not acted negligently with respect to operation of her vehicle. Id. Defendant proffered evidence that she had safely brought her vehicle to a complete stop prior to collision and that she had been propelled into the rear of another vehicle after a stop and after being hit in the rear by another vehicle. Id. The Court, after having no evidence that the defendant acted negligently or otherwise contributed to the accident, granted summary judgment in her favor. Id.
The "Emergency Doctrine"
A person confronted by an emergency may be entitled to have his response to said emergency evaluated using different standards than those applicable to non-emergency situations. The law recognizes on such standard, the "emergency doctrine" (the doctrine). In Rivera v. New York City Transit Authority, 77 NY2d 322 (1991), the Court in defining the doctrine stated the following
[T]his doctrine [emergency doctrine] recognizes that when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context.
Rivera v. New York City Transit Authority, 77 NY2d 322, 327 (1991); see also, Caristo v. Sanzone, 96 NY2d 172 (2001); Ferrer v. Harris, 55 NY2d 285 (1982).
The rationale behind this doctrine is that "a person confronted with an emergency situation, cannot reasonably be held to the same accuracy of judgment or conduct as one who has had full opportunity to reflect, even though it later appears that the actor made the wrong decision." Rivera v. New York City Transit Authority, 77 NY2d 322, 327 (1991). The doctrine should be submitted to a jury for consideration provided that the person seeking the charge presents evidence of a qualifying emergency. Id. The doctrine is not applicable if the person seeking the charge created the emergency situation alleged through his/her own negligence. Id.
While the applicability of the doctrine is ordinarily a jury question, the Court can decide the issue as a matter of law. The Court can decide the issue of the doctrine's applicability and whether or not a party is entitled to summary judgment based on the same. See, Caban v. Vega, 226 AD2d 109 (1st Dept. 1996) (Court granted summary judgment in favor of defendant, finding that based on the evidence defendant was confronted by an emergency situation, was entitled to have his actions judged using the emergency doctrine, and acted reasonably in applying his brakes to avoid an exigent situation); Gonzalez v. City of New York, 295 AD2d 122 (1st Dept. 2002) (Court Granted summary judgment to defendant, finding that the evidence supported the applicability of the emergency doctrine and summary judgment was warranted absent any evidence that defendant created the emergency or that he could have taken other action to avoid the accident); Wenz v. Shafer, 293 AD2d 742 (1st Dept. 2002) (Court granted defendant summary judgement holding that the evidence supported the application of the emergency doctrine. Court held that defendant's reaction, moving to avoid a vehicle, to a sudden emergency involving an oncoming spinning vehicle, was reasonable in light of the emergency); Quiles v. Greene, Jr., 291 AD2d 345 (1st Dept. 2002) (The Court denied summary judgement to the defendant holding that the conflicting versions of the accident raised triable issues of fact as to applicability of the emergency doctrine); Borst v. Sunnydale Farms, Inc., 258 AD2d 488 (2nd Dept. 1999) (Court granted summary judgment to defendant holding that defendant's reaction to the emergency was reasonable given the circumstances. The Court further held that error in judgment was insufficient to constitute negligence under the emergency doctrine); Edwards v. Gaines Service Leasing Corp., 244 AD2d 279 (1st Dept. 1997) (Court granted defendant summary judgment holding that the emergency doctrine applied to the facts as presented. Court held that defendant acted reasonably and decided summary judgment was warranted since plaintiff failed to identify what other action if any defendant could have taken).
Discussion
Plaintiff's motion seeking partial summary judgment is hereby denied. The proponent of a motion for summary judgment bears the burden of establishing entitlement to summary judgment as a matter of law. Said burden can only be satisfied with evidence in admissible form and in the case of a plaintiff seeking such relief said evidence must establish defendant's liability as a matter of law. In cases alleging negligence as the result of a motor vehicle accident, a plaintiff establishes prima facie entitlement to summary judgment by demonstrating that the defendant was negligent and that said negligence was the proximate cause of the accident. Plaintiff's motion must be denied insofar as the admissible evidence submitted by her fails to establish that defendants were negligent in the operation of their vehicle. In support of the instant motion, plaintiff submits three pieces of evidence, her affidavit, a police report, and photograph. Insofar as the police report and photographs were not certified and no foundation for their admission was laid, the Court could not consider the same. As such, the only admissble evidence which the Court could consider was plaintiff's affidavit which fails to satisfy plaintiff's burden as a matter of law. Besides making conclusory allegations related to Fresia's negligence and the absence of negligence on plaintiff's part, plaintiff's affidavit is wholly bereft of any facts regarding the operation of the vehicle within which she was a passenger or Fresia's vehicle. As such, the Court cannot assess whether Fresia's actions mount to negligence and as such, must deny plaintiff's motion.
Defendants' cross-motion is hereby granted. In the absence of evidence to the contrary, a defendant who establishes that he was not negligent in the operation of his vehicle is entitled to summary judgment. In this case, defendants establish prima facie entitlement to summary judgment insofar as they demonstrate that given the emergency Fresia was confronted with, her actions to the same were proper and reasonable as a matter of law and as such she was not negligent in the operation of her vehicle. It is well settled that a person confronted with an emergency situation, cannot reasonably be held to the same accuracy of judgment or conduct as one who has had full opportunity to reflect, even though it later appears that the actor made the wrong decision. In this case, Fresia's affidavit evinces that she was operating her vehicle when plaintiff's vehicle veered into her lane of travel. Fresia attempted to avoid the accident herein by moving her vehicle to the right and could go no further due to a fence obstructing her path of travel. Based on the foregoing, it is clear that Fresia was confronted with an emergency and that she attempted to avoid the same. Despite her efforts, the accident herein nonetheless occurred. The Court finds that Fresia's actions were reasonable given the circumstances and that as such, she was not negligent as a matter of law. Thus, defendants establish prima facie entitlement to summary judgment and in the absence of any admissible evidence controverting Fresia's version of the accident herein, defendants are entitled to summary judgment. It is hereby
ORDERED that the complaint herein be hereby dismissed with prejudice. It is further
ORDERED that defendants serve a copy of this Order with Notice of Entry upon plaintiff within thirty (30) days of entry of this Order.
This constitutes this Court's decision and Order.