Opinion
TS-300648/05.
Decided May 10, 2011.
DECISION/ORDER
Recitation, as required by CPLR § 2219 (a), of the papers considered in the review of this Motion
PapersNumbered
Notice of Motion and Affidavits Annexed ..... 1
Order to Show Cause and Affidavits Annexed ..
Answering Affidavits ........................ 2
Affirmation in Support ...................... 3
Exhibits
Supplemental Affidavit ......................
Upon review of the foregoing papers and after oral argument, plaintiff's motion for an order granting summary judgment against him and for dismissal of his co-plaintiff's action is decided as follows:
In a case which falls into the category of "now the court has heard everything," pro se plaintiff, Daniel Trachman, moves for an order granting summary judgment against himself and in favor of the defendants. In his affidavit in support plaintiff-movant contends that, contrary to statements he made during a prior deposition, defendant-driver was not negligent in causing the car accident which gave rise to this action. Rather, Mr. Trachman contends that his own negligence was the sole cause of the accident. Mr. Trachman describes the facts of the accident in some detail and gives a rational explanation for how he has come to the conclusion that defendant was entitled to the right of way at the time of the collision. Mr. Trachman also seeks to have the action of his co-plaintiff (and former spouse) for loss of services, declared moot. The co-plaintiff, Natalia Afansieva, opposes the motion. First, Ms. Afansieva, through counsel, points out that Mr. Trachman has failed to attach the pleadings to his motion. Ms. Afansieva further contends that Mr. Trachman's motion should be denied on the merits based on Mr. Trachman's contradictory statements regarding the facts of the case, as well as an independent witness statement indicating that the defendant-driver was at fault. Ms. Afansieva contends that these conflicting accounts create an issue of fact, precluding summary judgment. Defendants also submitted an affirmation in support of plaintiff's motion. Not surprisingly, defendants agree with Mr. Trachman's assessment, and argue that his admission of sole liability for the accident is sufficient to warrant dismissal of the action.
In general, annexation of the pleadings is required in order for the court to grant the relief requested in a motion for summary judgment ( see, e.g., Wider v Heller , 24 AD3d 433 [2d Dept 2005]). However, courts "generally allow pro se litigants some leeway in the presentation of their case" ( Stoves Stones, Ltd. v Rubens, 237 AD2d 280, 280 [2d Dept 1997]). Furthermore, while summary judgment is considered a drastic remedy, "when there is no genuine issue to be resolved at trial, the case should be summarily decided, and an unfounded reluctance to employ the remedy will only serve to swell the Trial Calendar and thus deny to other litigants the right to have their claims promptly adjudicated" ( Andre v Pomeroy, 35 NY2d 361, 364). Moreover, in this unique case, Mr. Trachman's motion, while couched as one for summary judgment, in fact seeks to voluntarily discontinue his own action, with prejudice. Under the circumstances, the court will look beyond any superficial irregularities to the substance of the motion.
CPLR 3217(b) governs voluntary discontinuance by order of the court and provides that "an action may be discontinued upon order of the court and upon terms and conditions, as the court deems proper." In substance, plaintiff's motion seeks to voluntarily discontinue his action with prejudice. Although co-plaintiff, Ms. Afansieva, opposes Mr. Trachman's motion, there is no dispute that Ms. Afansieva was not involved in the car accident giving rise to this action and that she does not have an independent claim for personal injuries. Rather, as Mr. Trachman's former spouse, Ms. Afansieva's claim is solely for loss of services/consortium, and is entirely derivative of Mr. Trachtman's right to recover personally ( Maidman v Stagg, 82 AD2d 299, 301 [2d Dept 1981] ["consortium claims . . . are derivative; plaintiff's right of recovery for loss of consortium must be tested against the injured spouse's right to recover personally for his own injuries"). Thus, it is doubtful that Ms. Afansieva even has standing to oppose Mr. Trachman's motion. The court declines to speculate as to Mr. Trachman's motivation in seeking to terminate his own action and must assume it is based, as he claims, upon a good faith review of the facts. In any event, it is irrelevant to the court's legal determination. In the absence of any founded opposition to plaintiff's motion, and in light of Mr. Trachman's affirmation ascribing full liability to himself, whether viewed as a motion for summary judgment or for voluntary discontinuance, the court finds no basis in law or reason for this action to continue.
Finally, section 130-1.1 of the Uniform Rules defines conduct as frivolous if: "1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; 2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another." Under the circumstances, the court ought not stand in the way of terminating this action, which the plaintiff himself describes as without merit.
Accordingly, plaintiff's motion is granted to the extent that the matter is dismissed. As Ms. Afansieva's action cannot stand on its own, it is likewise dismissed as moot. This constitutes the decision and order of the court.