Opinion
Index No. 52870/2019 Mot. Seq. No. 1
10-15-2020
GARY A. TAYLOR, Plaintiff, v. MATTHEW J. COURTIEN, THE CITY OF YONKERS and the CITY OF YONKERS POLICE DEPARTMENT, Defendants.
Unpublished Opinion
Submit Date: 9/02/2020
DECISION /ORDER
Lawrence H. Ecker, Judge
In accordance with CPLR 2219 (a), the decision herein is made upon considering all papers filed in NYSCEF relative to the motion of plaintiff GARY A. TAYLOR (Mot. Seq. 1), made pursuant to CPLR 3212, for an order granting summary judgment as to liability, as against MATTHEW J. COURTIEN, THE CITY OF YONKERS and the CITY OF YONKERS POLICE DEPARTMENT (defendants).
In this personal injury action, plaintiff claims that he sustained serious injuries on January 3, 2018 when he was operating his vehicle while stopped at a red light when it was struck in the rear by the vehicle owned by the City of Yonkers and used by the police department, which was being operated by Courtien, a police officer with the Yonkers Police Department. The accident occurred around 7:00 p.m. on 216 New Main Street near the intersection of Nepperhan Avenue in the City of Yonkers.
In July 2018, the Hon. Lewis J. Lubell, J.S.C. granted plaintiff's order to show cause to file a late notice of claim pursuant to General Municipal Law § 50-e (5). No examination of plaintiff under General Municipal Law § 50-h was conducted. Plaintiff commenced this action in February 2019. Shortly thereafter, defendants interposed an answered, asserting five affirmative defenses.
In the absence of a General Municipal Law § 50-h hearing having been conducted - but after depositions in this action were completed - plaintiff now moves for summary judgment on the issue of liability against all defendants. In support of his motion, plaintiff submitted, among other things, the pleadings, the bill of particulars amplifying the pleading which were supplemented, and his affidavit describing the accident.
Specifically, the Compliance Conference Referee Report & Order dated September 14, 2020 states that "party depositions have been completed," that ongoing document exchanges are to take place, and that the next compliance conference is to be conducted on November 9, 2020 (see NYSCEF Doc. No. 23 [so ordered by Lefkowitz, J.])
Defendants oppose the motion, arguing that the motion is premature because no General Municipal Law § 50-h hearing or depositions of any party have been conducted. Notably, the affirmation in opposition of counsel for defendants is dated August 25, 2020. Defendants contend that the 50-h hearing may disclose a flaw in plaintiff's version of the facts; that there may be comparative negligence on plaintiff's part; and that disclosure is required on the issue of plaintiff's damages, thus precluding summary judgment.
In reply, plaintiff concedes that although defendants are entitled to depose him regarding his claimed injuries (which presumably has occurred), defendants failed to demonstrate that plaintiff did not make out a prima facie case. Defendants also contend that comparative negligence, if any, is an issue to be determined by the trier of fact in mitigating damages, and not as an affirmative defense to a showing of liability (see Rodriguez v City of New York, 31 N.Y.3d 312, 318-319 [2018]).
CPLR 3212 (b) states, in relevant part, that a motion for summary judgment "shall be granted if, upon all of papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party." To that end, it is well settled that the proponent of the summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]; Winegrad v New York Univ. Med. Center, 64 N.Y.2d 851, 853 [1985]; Zuckerman v City of New York, 49 N.Y.2d 557, 560 [1980]; De Souza v Empire Tr. Mix, Inc., 155 A.D.3d 605, 606 [2d Dept 2017]). Importantly, "[o]nce this showing has been made, the burden then shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 N.Y.2d at 324; see De Souza v Empire Tr. Mix, Inc., 155 A.D.3d at 606). "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to create a material issue of fact" (Zuckerman v City of New York, 49 N.Y.2d at 562; see Hammond v Smith, 151 A.D.3d 1896, 1898 [4th Dept 2017], lv denied 153 A.D.3d 1677 [2017]).
On a summary judgment motion, a court is obligated to determine whether there are issues of fact that militate against granting that relief to the parties. Moreover, "[i]t is not the court's function on a motion for summary judgment to assess [issues of] credibility" (Chimbo v Bolivar, 142 A.D.3d 944, 945 [2d Dept 2016]; Garcia v Stewart, 120 A.D.3d 1298, 1299 [2d Dept 2014]), nor to "engage in the weighing of evidence" (Chimbo v Bolivar, 142 A.D.3d at 945; Scott v Long Is. Power Auth., 294 A.D.2d 348, 348 [2d Dept 2002]). "Resolving questions of credibility, determining the accuracy of witnesses, and reconciling the testimony of witnesses are for the trier of fact" (Bykov v Brody, 150 A.D.3d 808, 809 [2d Dept 2017]; accord Kahan v Spira, 88 A.D.3d 964, 966 [2d Dept 2011]). Thus, "[a] motion for summary judgment should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility" (Ruiz v Griffin, 71 A.D.3d 1112, 1115 [2d Dept 2010]; accord Civil Serv. Empls. Assn. v County of Nassau, 144 A.D.3d 1077, 1079 [2d Dept 2016]).
Here, plaintiff states in his affidavit that, on the day in question, he was rear-ended by Courtien's vehicle while stopped at a red light for more than 10 seconds, that his brake lights were on and functioning at the time of the accident, and that he did not contribute to the happening of the accident. Plaintiff thus established his prima facie entitlement to judgment as a matter of law on the issue of liability (see Williams v Spencer-Hall, 113 A.D.3d 759, 761 [2d Dept 2014]).
Defendants, in opposition, failed to raise a triable of fact as to liability or to rebut the inference of negligence by providing a nonnegligent explanation for the rear-end collision (see Cortes v Whelan, 83 A.D.3d 763, 764 [2d Dept 2011]; Davila v New York City Tr. Auth., 66 A.D.3d 952, 953 [2d Dept 2009]). Importantly, Courtien did not submit an affidavit setting forth his version, or rebutting plaintiff's version, of how the accident occurred (see Williams v Spencer-Hall, 113 A.D.3d at 761). Nor did defendants submit an affidavit from an individual with personal knowledge of the facts.
Moreover, the court rejects defendants' efforts to avoid summary judgment since mere speculation as to what disclosure may or may not reveal is insufficient. Defendants' bare assertion that plaintiff's version of the accident should be further examined at a deposition, without more, does not identify anything they sought to discover that would relieve them of liability (see Richards v Burch, 132 A.D.3d at 754 [2d Dept 2015]; Cajas-Romero v Ward, 106 A.D.3d 850, 852 [2d Dept 2013]). Moreover, defendants failed to demonstrate that other discovery may result in disclosure of relevant information pertinent to the accident (see Turner v Butler, 139 A.D.3d 715, 716 [2d Dept 2016]); nor did they make the requisite showing that relevant facts essential to justify opposition to the motion are exclusively within plaintiff's knowledge and control (see CPLR 3212 [f]; Batashvili v Veliz-Palacios, 170 A.D.3d 791, 793 [2d Dept 2019]; Williams v Spencer-Hall, 113 A.D.3d at 760-761). Their "mere hope or speculation that evidence sufficient to defeat" plaintiff's motion for summary judgment may be uncovered during the discovery process is insufficient to deny the relief sought (Davila v New York City Tr. Auth., 66 A.D.3d at 953).
Though depositions have concluded, defendants have not requested the court to submit supplemental submissions on the motion as a result of what was ascertained during depositions, either as to liability or damages. Defendants did not adduce any proof in admissible form to counter plaintiff's assertions or the affirmative defense(s) raised in their answer relative to liability or comparative negligence. In short, defendants failed to show what was learned during the parties' depositions to subsume or corroborate what could have been adduced at plaintiff's General Municipal Law 50-h hearing (compare e.g. Amador v City of New York, 120 A.D.3d 526, 527 [2d Dept 2014]; Davila v New York City Tr. Auth., 66 A.D.3d at 953; Riley v County of Broome, 256 A.D.2d 899, 899-900 [3d Dept 1998]).
Moreover, plaintiff does not have to establish absence of his own comparative fault in order to be awarded summary judgment as to liability (see Edgerton v City of New York, 160 A.D.3d 809, 811 [2d Dept 2018]). Notwithstanding, the issue of damages is reserved for trial. Comparative fault on the part of plaintiff, if any, which would offset the amount of damages, must abide the trial (see Perez v Persad, 183 A.D.3d 771, 772 [2d Dept 2020]; cf. Vailes v Molly Coll., 175 A.D.3d 1348, 1349 [2d Dept 2019]; Edgerton v City of New York, 160 A.D.3d at 811). Here, plaintiff's bill of particulars lists the injuries he allegedly suffered, and his supplemental bill of particulars outline the operative procedures performed on him in August 2018. Hence, the parties should proceed with discovery to facilitate the process of ascertaining the amount of damages, if any (see Rodriguez v City of New York, 31 N.Y.3d at 318-319; Perez v Persad, 183 A.D.3d at 772). Therefore, plaintiff is entitled summary judgment as to liability against defendants.
The court has considered the additional contentions of the parties not specifically addressed herein. To the extent any relief requested by the parties was not addressed, it is hereby denied. Accordingly, it is hereby:
ORDERED that the motion of plaintiff GARY A. TAYLOR (Mot. Seq. 1), made pursuant to CPLR 3212, for an order granting summary judgment as to liability, as against defendants MATTHEW J. COURTIEN, THE CITY OF YONKERS and the CITY OF YONKERS POLICE DEPARTMENT, is granted; and it is further
ORDERED that the parties shall appear at the Compliance Conference Part of the Court on November 9, 2020, as was directed in the Compliance Conference Referee Report & Order dated September 15, 2020, which was so ordered by the Hon. Joan B. Lefkowitz, J.S.C. (see NYSCEF Doc No. 23).
The foregoing constitutes the decision and order of the court.