Opinion
Index No. 606214/2021
01-31-2024
R.C.J., Plaintiff, v. L.D.W., Defendant.
Plaintiff was represented by: Rommel Daniel, Esq. Defendant was represented by Eric Gordon Dahlgren, Esq.
Unpublished Opinion
Plaintiff was represented by: Rommel Daniel, Esq.
Defendant was represented by Eric Gordon Dahlgren, Esq.
Conrad D. Singer, J.
The following papers were read on this motion:
Defendant's Notice of Motion for Summary Judgment and Supporting Papers [001].............X
Affirmation in Opposition to Motion and Supporting Papers [001]............ X
Reply Affirmation [001]............X
Upon the foregoing papers, the motion filed by the Defendant, L.D.W. ["Defendant"], for an Order pursuant to CPLR 3212 granting her summary judgment on the issue of liability and dismissing the Complaint against her, is determined as follows:
The Plaintiff, R.C.J. ["Plaintiff"], commenced this action by filing a Summons and Complaint on May 18, 2021. Issue was joined by the Defendant's service of an Answer on June 11, 2021. The Plaintiff commenced this action to recover damages for personal injuries he allegedly sustained as a result of a motor vehicle collision that occurred on February 10, 2019 at approximately 4:15 PM on Franklin Avenue at the intersection of Garvin Boulevard, in Franklin Square, New York.
The Defendant contends that she is entitled to summary judgment dismissal of the Plaintiff's Complaint, because the Plaintiff violated VTL § 1141 by making a left turn directly into the path of the Defendant's vehicle. She further contends that the Plaintiff was negligent in failing to see that which, under the circumstances, he or she should have seen, and in crossing in front of the Defendant's vehicle when it was hazardous to do so. Additionally, the Defendant contends that because she had the right of way, she was entitled to anticipate that the Plaintiff would obey traffic laws which required him to yield.
In a motion for summary judgment the moving party bears the burden of making a prima facie showing that he or she is entitled to summary judgment as a matter of law, by submitting sufficient evidence to demonstrate the absence of a material issue of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 [1986]). The "[f]ailure to make such a prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers". (Alvarez, 68 N.Y.2d at 324). "A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings, and by other available proof, such as depositions and written admissions". (Poon v. Nisanov, 162 A.D.3d 804, 806 [2d Dept 2018]). The movant's submissions "must show 'that there is no defense to the cause of action or that the cause of action or defense has no merit'". (Poon, 162 A.D.3d at 806).
"[A] defendant moving for summary judgment dismissing one of the plaintiff's causes of action may generally sustain his or her prima facie burden 'by negating a single essential element' of that cause of action To defeat summary judgment, the nonmoving party need only rebut the prima facie showing made by the moving party so as to demonstrate the existence of a triable issue of fact." (Poon, 162 A.D.3d at 806; internal citations omitted, citations omitted).
"As relevant here, 'the elements of a cause of action sounding in negligence are: (1) the existence of a duty on the defendant's part as to the plaintiff; (2) a breach of this duty; and (3) an injury to the plaintiff as a result thereof'". (Poon, 162 A.D.3d at 806; citations omitted). "Accordingly, a defendant who moves for summary judgment dismissing a cause of action alleging negligence may sustain his or her initial burden by 'establishing, prima facie, that he or she was not at fault in the happening of the subject accident'". (Poon, 162 A.D.3d at 806; citations omitted).
The Defendant's motion for summary judgment is supported by, inter alia, the deposition testimony of the parties. The Defendant testified that the accident occurred on Franklin Avenue at its intersection with Gavrin Boulevard, and that the intersection is regulated by a traffic light. She testified that when she was a block away from the traffic light, it was green, and that she was traveling at 27 MPH when she observed that the light was green. She further testified that when she first observed the Defendant's vehicle, it was in the turning lane on Franklin Avenue, and that when the Defendant's vehicle entered the intersection, the Plaintiff's vehicle was stopped in its turning lane. The Defendant testified that her vehicle was contacted on its front driver's side, and that the hood of the Plaintiff's vehicle was beat up.
The Plaintiff testified that Franklin Avenue where he was traveling had two lanes for moving traffic and a left turn lane. The Plaintiff testified that a traffic light controls the intersection where the accident occurred, and that in the direction that the Plaintiff was traveling, the light is a three-phase red/yellow/green traffic light, and also has two arrows. The Plaintiff testified that he was "turning" when he first observed the three-phase traffic light. He did not look at a left turning arrow at any time before the accident, it was just a solid green. He testified that he had already started the left turn when the accident occurred, and that from the time that he turned left onto Franklin to the time of the accident, his vehicle did not stop. He did not see the Defendant's vehicle before the accident occurred. The Plaintiff testified that the contact occurred to the passenger side door of his vehicle, and that after the accident, he observed that the front of the other vehicle was touching the passenger side of his vehicle.
The Defendant established prima facie entitlement to summary judgment by demonstrating that she had the right-of-way, that the Plaintiff failed to yield the right of way, and that the Defendant did not have sufficient time to react in order to avoid the collision. (Smith v Trail, 221 A.D.3d 928, 929 [2d Dept 2023] [citations omitted]). "Although a driver with a right-of-way also has a duty to use reasonable care to avoid a collision,... a driver with the right-of-way who has only seconds to react to a vehicle which has failed to yield is not comparatively negligent for failing to avoid the collision". (Smith, 221 A.D.3d at 929).
The Plaintiff failed to raise a triable issue of fact in opposition to the Defendant's prima facie motion. Plaintiff's counsel argues that the Defendant failed to submit any admissible evidence in support of her motion. However, counsel's affirmation may serve as the "vehicle for the submission of acceptable attachments which do provide 'evidentiary proof in admissible form'", such as the deposition transcripts submitted by the Defendant in support of her motion. (Zuckerman v City of New York, 49 N.Y.2d 557, 563 [1980]).
The Plaintiff contends that an investigating officer at the scene of the accident found that Defendant was speeding and was liable for the accident. However, in support of this argument, the Plaintiff submits an uncertified police accident report, which is not in admissible form. (Zeldin v Larose, 2022-05896, 2024 WL 253279, at *1 [2d Dept Jan. 24, 2024] [citing to Yassin v. Blackman, 188 A.D.3d 62, 65 [2d Dept 2020]). Therefore, the Court has disregarded and has not considered the inadmissible police report as evidence in opposition to the Defendant's prima facie showing. (Singh v Jervis, 222 A.D.3d 900 [2d Dept 2023] [citations omitted]).
The Plaintiff also argues that in prior proceedings conducted in the District Court, Nassau County, and arising from this accident the Court found that the Defendant was the party liable for the accident and that, under the doctrine of res judicata, the issue of liability should be resolved in favor of the Plaintiff. "[T]he common-law doctrine of res judicata 'bars the litigation of a claim or defense if there exists a final judgment in former litigation in which the parties, subject matter and causes of action are identical or substantially identical'". (O'Connell v Corcoran, 1 N.Y.3d 179, 184-85 [2003] [citations omitted]). However, in support of such argument, the Plaintiff only submits the underlying Summons and Complaint from Small Claims Court, asserting a property damage claim against the Defendant for $5,000.00, and a resulting judgment in favor of Myriame Alexandre Bellevue [who is not a party to this case] against the Defendant, L.D.W., in the amount of $3,467.00.
In Molksa v. Garfield, 2 A.D.3d 510, 510-511 [2d Dept 2003], the Second Department held that "a small claims judgment is not res judicata with respect to the adjudication of any fact at issue or found therein". (Molska v Garfield, 2 A.D.3d 510, 510-11 [2d Dept 2003]). In reaching that determination, the Second Department cited to Section 1808 of the Uniform Justice Court Act, which provides as follows:
"A judgment obtained under this article shall not be deemed an adjudication of any fact at issue or found therein in any other action or court; except that a subsequent judgment obtained in another action or court involving the same fact,1 issues and parties shall be reduced by the amount of a judgment awarded under this article."(Uniform Justice Court Act § 1808).
Section 1808 of the Uniform District Court Act contains nearly identical language, and provides as follows:
"A judgment obtained under this article shall not be deemed an adjudication of any fact at issue or found therein in any other action or court; except that a subsequent judgment obtained in another action or court involving the same facts, issues and parties shall be reduced by the amount of a judgment awarded under this article."(Uniform District Court Act § 1808).
Based on the Second Department's holding in Molska, and the language in Section 1808 of the Uniform Justice Court Act as well as the Uniform District Court Act, it appears to the Court that the small claims judgment does not constitute res judicata with respect to the issue of the Defendant's liability (or freedom therefrom) in the present action. (See Kilinski v Melendez, 182 Misc.2d 55, 57 [Sup Ct Nassau County 1999]). In any event, the Plaintiff has failed to put forth sufficient evidence that Defendant in this case was afforded a "full and fair opportunity to contest" the issue of her liability for the car accident in the prior small claims proceeding. (Luscher ex rel. Luscher v Arrua, 21 A.D.3d 1005, 1007 [2d Dept 2005]). Therefore, the Court finds that the small claims judgment obtained by non-party Myriame Alexandre Bellevue against L.D.W. does not constitute res judicata on the issue of the Defendant's liability in this matter.
As the Defendant established prima facie that she did not cause the subject car accident, and the Plaintiff failed to raise an issue of fact in opposition thereto, the Defendant's motion for an Order pursuant to CPLR 3212 granting her summary judgment and dismissing the Plaintiff's Complaint shall be GRANTED, and the Plaintiff's Complaint shall be DISMISSED.
Accordingly, it is hereby:
ORDERED, that the Defendant's motion for an Order granting her summary judgment on the issue of liability and dismissing the Plaintiff's Complaint [Seq. 001] is GRANTED; and it is further, ORDERED, that the Plaintiff's Complaint is DISMISSED.
This constitutes the decision and Order of this Court.