Liberty Mut. Ins. Co. v Perez

[*1] Liberty Mut. Ins. Co. v Perez 2009 NY Slip Op 50993(U) [23 Misc 3d 140(A)] Decided on May 21, 2009 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 21, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld, Heitler, JJ
570436/08.

Liberty Mutual Insurance Co. a/s/o Deborah Tortorica, Plaintiff-Respondent,

against

Cassidy Perez, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, New York County (Geoffrey D. Wright, J.), entered April 15, 2008, which granted plaintiff's motion for summary judgment in the principal sum of $19,865.64, and denied defendant's cross motion for summary judgment dismissing the complaint.

Per Curiam.

Appeal from order (Geoffrey D. Wright, J.), entered April 15, 2008, is deemed an appeal from a judgment entered June 25, 2008, and so considered, judgment modified to vacate the award of damages and direct a trial as to damages only; as modified, judgment affirmed, without costs.

In this subrogation action, plaintiff established its prima facie entitlement to summary judgment on the issue of liability by submitting evidence, including the affidavit of its subrogor and a police accident report, demonstrating that defendant's vehicle struck the subrogor's legally parked vehicle from the rear. The police accident report contained defendant's statement that he had fallen asleep at the wheel (see Scott v Kass, 48 AD3d 785 [2008]; Mariano v New York Tr. Auth., 38 AD3d 236 [2007]; see also Crowder v Wells & Wells Equip., Inc., 11 AD3d 360 [2004]). In opposition, defendant failed to submit any competent evidence to rebut the inference of negligence by offering a non-negligent explanation for the contact with a stationary vehicle.

Turning to the issue of damages, the court properly rejected defendant's spoliation of evidence claim, since he was not otherwise without evidence tending to establish the market value of the now-destroyed vehicle (see McMahon v Ford Motor Co., 34 AD3d 263 [2006]; Cameron v Nissan 112 Sales Corp., 10 AD3d 591, 592 [2004]). However, summary judgment on the issue of damages should not have been granted to plaintiff since the record does not conclusively establish the market value of the vehicle prior to the accident (see Gass v Agate Ice Cream, Inc., 264 NY 141 [1934]; Aurnou v Craig, 184 AD2d 1048 [1992]). Accordingly, we remand for a trial on damages only, at which defendant will have the opportunity to present evidence challenging plaintiff's decision to declare the vehicle a total loss.

THIS CONSTITUTES THE DECISION AND ORDER OF THE
COURT.
Decision Date: May 21, 2009