Opinion
No. 25145/10.
08-08-2014
Pierre MERCURE, Plaintiff, v. SBH TRUCKING, INC., Raul Tejada, Eddy Bazile, and West Indian American Day Carnival Association, Inc., Defendants.
David Godosky, Esq., Godosky & Gentile, P.C., New York, Attorneys for Plaintiff 61 Broadway. Elizabeth Indelicato, Esq., Paul A. Fino, Jr., Esq., Cheven, Keely & Hatzis, New York, Attorneys for SBH Trucking, Inc. White Fleischner & Fino, LLP, New York, Attorneys for Paul Tejada, Jean Eddy Bazile, a/k/a Eddy Bazile, Bazile Entertainment, and West Indian Day Carnival Association, Inc.
David Godosky, Esq., Godosky & Gentile, P.C., New York, Attorneys for Plaintiff 61 Broadway.
Elizabeth Indelicato, Esq., Paul A. Fino, Jr., Esq., Cheven, Keely & Hatzis, New York, Attorneys for SBH Trucking, Inc.
White Fleischner & Fino, LLP, New York, Attorneys for Paul Tejada, Jean Eddy Bazile, a/k/a Eddy Bazile, Bazile Entertainment, and West Indian Day Carnival Association, Inc.
Opinion
FRANCOIS A. RIVERA, J.
Recitation in accordance with CPLR 2219(a) of the papers considered on the notice of motion of defendant SBH Trucking, Inc. (hereafter SBH), filed on December 23, 2013, under motion sequence number six, for an order dismissing the complaint pursuant to CPLR 3212 :
Notice of Motion
Affirmation of SBH's counsel
Exhibits A–V
Affirmation of plaintiff's counsel in opposition
Affidavit of Geordony Valme
Affidavit of Patricia Emilcar
Affidavit of Ronald Gedeon
Exhibits A–J
Reply Affirmation of SBH's counsel
Recitation in accordance with CPLR 2219(a) of the papers considered on the joint notice of motion of defendants Jean Eddy Bazile, a/k/a Eddy Bazile and Bazile Entertainment (collectively, Bazile), West Indian American Day Carnival Association, Inc. (hereafter the Association), and Raul Tejada (hereafter Tejada), filed on December 26, 2013, under motion sequence number seven, for an order dismissing the complaint pursuant to CPLR 3212 :
Notice of Motion
Affirmation of defense counsel
Exhibits A–J
Affirmation of plaintiff's counsel in opposition
Affidavit of Geordony Valme
Affidavit of Patricia Emilcar
Affidavit of Ronald Gedeon
Exhibits A–J
The background summary is taken from the parties' submissions, including pleadings and the pretrial depositions of plaintiff, Bazile, Tejada, and nonparty Charles Senat. It is only set forth to provide context for the instant motions and does not constitute findings of fact by the Court.
Plaintiff Pierre Mercure (hereafter plaintiff), a 79th precinct uniformed patrolman with three years in service, suffered a line-of-duty injury on Sept. 6, 2010, following the West Indian Day Parade which ended at about 6 p.m. that day. At about 7:30 p.m., as he was escorting a tractor-trailer on Empire Boulevard, outside the parade grounds then open for traffic, one or more of the tractor's rear tandem tires ran over plaintiff's left foot and ankle.
Plaintiff commenced this personal injury action (later consolidated) against (1) SBH as the tractor's owner; (2) Tejada as the tractor-trailer's driver; (3) Bazile as one of the parade promoters, which supplied a trailer (more particularly, a float with the music band “T–Vice”) which the tractor was pulling at the time of the accident; and (4) the Association as the parade's organizer. SBH and Tejada impleaded Bazile and the Association for contribution and common-law indemnification. Tejada's third-party claims were later discontinued. After discovery was completed and a note of issue was filed, SBH separately, and Tejada, Bazile, and the Association jointly, moved for summary judgment dismissing plaintiff's complaint.
A tractor should be distinguished from a trailer. A tractor's cab (here, a 2000 Volvo) was equipped with seats for the driver (Tejada) and a passenger (then senior patrol officer Charles Senat). A trailer was connected to the tractor typically via a “fifth wheel” coupling. There was a gap between the tractor's cab and the trailer to allow for maneuverability. A metal platform was running atop the coupling for the length of the gap between the tractor's cab and the trailer. The platform was not equipped with space for passengers, although it could be used to “catch a ride” by holding onto a pipe that led to the muffler. The platform was reachable by climbing the steps for the tractor's cab, then stepping onto the fuel tank (there was one fuel tank on each side of the tractor's cab), and proceeding onto the platform. The tractor's wheels (a single axle in the front and the tandem axles in the back) were unconvered, whereas the trailer's wheels were covered with plywood. The tractor was provided by SBH, whereas the trailer was rented by Bazile from a nonparty.
LAW AND APPLICATION
Four triable issues of material fact preclude summary judgment to SBH and Tejada. First, on the issue of negligence, Tejada's deposition testimony (at page 72:15–25) that he was driving straight on the roadway at the time of the accident is contradicted by the affidavit of a previously disclosed eyewitness (Mr. Geordony Valme), dated Dec. 9, 2013, that “the driver [Tejada] veered to the right towards and into the bike lane where the officer [plaintiff] was walking” (¶ 8). Second, on the issue of causation, plaintiff's deposition testimony that he was walking alongside the tractor-trailer at about an arm's length away from it at the time of the accident, is contradicted by (1) Tejada's deposition testimony that plaintiff was not a pedestrian but rode on the tractor-trailer's coupling (or platform) at the time of the accident, and (2) the FDNY Prehospital Care Report and the Kings County Hospital Center Adult Admission Note, both describing the accident as plaintiff's falling off either the tractor or the trailer. Third, on the issue of comparative negligence, plaintiff's cellular telephone records indicate that he may have been inattentive by talking or texting at the time of the accident. Fourth, the deposition testimony of the then-senior patrol officer (now sergeant) Charles Senat who was in the passenger seat in the tractor's cab at the time of the accident is conflicting as to whether he was instructing Tejada when and how to drive the tractor-trailer.
See Tejada Tr at 10:16–17 and 10:20–21 (testifying that plaintiff “was not a pedestrian. He was with me in the truck [i.e., the platform]”); 45:14–15 (“I saw [plaintiff] several times. He was getting in and out.”); 45:18–20 (“[Plaintiff] would get up in the truck [i.e., the platform] to rest.”); 83–16–19 (testifying that police officers were going up and down the platform throughout the day). See also Tejada Tr 82:20–23 (testifying that the passenger seat in the tractor's cab was reserved by a senior police officer for himself and his son, and that no one else was allowed to use the passenger seat).
The FDNY Prehospital Care Report is internally inconsistent. Its section on narrative history and comments describes the accident as plaintiff falling off the trailer (float). Its section on presumptive diagnosis, however, states “broken left leg secondary to pedestrian struck” (abbreviations spelled out; emphasis added).
See plaintiff's AT & T bill, entries 1275, 1276, and 1277 for Sept. 6, 2010, at 7:30 p.m., 7:33 p.m., and 7:34 p.m., respectively, all billed at 1 minute each.
Compare Senat Tr at 145:22–146:2 (testifying that while the tractor was on Empire Boulevard, “he [Tejada] was still required to do what we [NYPD] told him to do”) with Senat Tr at 146:9–12 (“Q. Is it your testimony that you were not giving the truck driver [Tejada] any directions to operate the truck while on Empire Boulevard? A. Yes.” [emphasis added] ). Cf. Holliday v. Hudson Armored Car & Courier Serv., Inc., 301 A.D.2d 392, 395 (1st Dept 2003), lv dismissed in part, denied in part 100 N.Y.2d 636 (2003) (driver who complied with police officer's instructions not liable for accident).
As the issues of witness credibility are not appropriately resolved in a motion for summary judgment (see Kolivas v. Kirchoff, 14 AD3d 493 [2d Dept 2005] ), and because a proponent of a summary judgment motion must establish his or its freedom from comparative fault as a matter of law (see Antaki v. Mateo, 100 AD3d 579, 580 [2d Dept 2012] ), the drastic remedy of summary judgment is not appropriate for Tejada and SBH (see Calandra v. Marnell, 16 AD3d 1125, 1126 [4th Dept 2005] ; Breen v. Areiter, 13 A.D.2d 833, 834 [2d Dept 1961], lv to modify denied 13 A.D.2d 1018 [2d Dept 1961] ; Zuckerman v. Szabo, 158 N.Y.S.2d 856, 857 [County Ct, Schenectady County 1957] ). Considering that the summary judgment record does not point to the negligence of one particular party without any fault or culpable conduct by the other party, the Court declines plaintiff's request to search the record and award him partial summary judgment on liability against Tejada and SBH (see Gammons v. City of NY, 109 AD3d 189, 203 [2d Dept 2013] ).
The Court also denies the summary judgment motion of Bazile and the Association, but does so for a different reason. “The prima facie showing that a defendant must affirmatively make on a motion for summary judgment is governed by the allegations of liability made by the plaintiff in the pleadings” (Perruzza v. L & M Creations of NY, 114 AD3d 919, 920 [2d Dept 2014] ). Here, plaintiff's complaint, as amplified by his bill of particulars, dated Oct. 27, 2011, alleges that these defendants were negligent by failing to adequately supervise the parade and by creating a dangerous condition, resulting in plaintiff's injuries. However, these defendants have not addressed, by competent proof, the issues of the parade supervision and the driving conditions at the time of the accident. Their counsel's affirmation, by merely pointing to gaps in plaintiff's proof, rather than affirmatively demonstrating the merit of their defense, failed to carry their burden on summary judgment (see Marielisa R. v. Wolman Rink Operations, LLC, 94 AD3d 963, 964 [2d Dept 2012] ). Accordingly, the summary judgment motions of Bazile and the Association are denied, regardless of the sufficiency of the opposing papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985] ).
CONCLUSION
SBH's motion for an order pursuant to CPLR 3212 granting summary judgment on in its favor on the issue of liability and dismissing the complaint is denied.
Bazile, the Association and Tejada's joint motion for an order pursuant to CPLR 3212 granting summary judgment in their favor on the issue of liability and dismissing the complaint is denied.
This foregoing constitutes the decision and order of the Court.