Vallejo v Dominos

[*1] Vallejo v Dominos 2006 NY Slip Op 50716(U) [11 Misc 3d 1085(A)] Decided on April 24, 2006 Supreme Court, Westchester County Smith, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 24, 2006
Supreme Court, Westchester County

Alfonso Vallejo, Plaintiff,

against

Mastri Dominos, Defendant.



5723/05



John H. Hersh, Esq.

Atty. For Pltf.

First Federal Building

Peekskill, New York 10566

Kral, Clerkin, Redmond, Ryan, Perry & Girvan, LLP

Attys. For Deft.

170 Broadway

New York, New York 10038

Mary H. Smith, J.

This is an action to recover for personal injuries allegedly sustained by plaintiff as a result of a two-vehicle head-on collision that occurred at approximately 7:45 p.m., on July 22, 2004. According to plaintiff's examination before trial testimony, at that time he had been driving westbound in the left lane of the Bear Mountain Extension Parkway, a four-lane highway with two lanes in each direction, divided by a double yellow line. It was sunny at the time and that portion of the road, for approximately 2/10 of [*2]a mile, is flat. Plaintiff testified that he had been driving 45 to 50 miles per hour. Approximately five seconds before the collision, plaintiff had observed a vehicle, without its headlights on, traveling in the right lane of the eastbound lanes; "he was doing very fast driving ..."[FN1] This vehicle later was identified to having been driven by Peter Arzu. Plaintiff had observed the Arzu vehicle move from the right eastbound lane into the left eastbound lane and then suddenly crossover the double yellow line into plaintiff's lane of traffic. When plaintiff was asked whether, upon making these observations, he took any action at that time, plaintiff replied, "I couldn't do anything because there was no time for that, everything was instantly." He admitted to not blowing his horn. According to plaintiff, immediately prior to the crash he had been driving with his eyes straight ahead on the road when he was caused to observe Arzu's vehicle, which was driving "very fast," "eighty miles per hour or so because by the time I saw him and then he hit me, there was no time for anything," "he was on top of me instantly."

This action ensued, plaintiff suing defendant Mastri Dominos, who was Mr. Arzu's employer at that time, upon the theory of respondeat superior. Mr. Arzu's duties with Dominos had included making pizza deliveries using Arzu's personal vehicle and, according to the deposition testimony of Anthony Maestri, the president and shareholder of defendant, Mr. Arzu had been returning from making a pizza delivery on behalf of defendant at the time of the accident. During his deposition, Mr. Maestri was asked the following questions and gave the following responses:

Q. Did he [the store manager] tell you that Peter

Arzu had just completed a delivery for your LLC

at the time of his death?

A. Yes.

* * *

* * *

* * *

* * *

Q. Was it the custom and practice of Mr. Arzu while

he was an employee of the LLC to return with the

purchase money after each deliver? [*3]

A. Yes.

Q. Would it be fair to say that Mr. Arzu was on his

way back with the purchase money after just having

made a delivery at the time that he died?

A. Correct.

Q. Were your employees allowed to take the purchase

money home and come back another day whenever they

were back on duty or did they have a responsibility

to turn in the money after they made a delivery?

A. They have the responsibility to put the money

into their own private lock box that at the end

of the day they would then settle up with us.

Q. Was it your company's custom and practice that

your delivery people, including Mr. Arzu, in July

2004 would have to come back to the station so to

speak or headquarters with the money after delivery?

A. Yes.

Q. In the course of their employment, they were on

their way back; correct, I mean they weren't on

their way home, they had to come back to the shop,

correct?

A. Yes.

Plaintiff now is moving for an Order amending and correcting the caption to reflect defendant's proper corporate name and for summary judgment on the issues of liability and serious injury.

Defendant opposes the motion insofar as summary judgment is being sought, arguing, firstly, that plaintiff has failed to demonstrate entitlement to judgment on the issue of serious injury where his motion is not supported by a physician's affirmation and, secondly, that there are triable issues of fact which preclude judgment as a matter of law on the issue of liability. Specifically, defendant contends that a jury must decide whether Mr. Arzu was operating his vehicle at the time of the accident in furtherance of defendant's business purpose, whether defendant knew that Mr. Arzu operated his vehicle in violation of the vehicle and traffic laws and whether plaintiff's own conduct warrants a finding of comparative negligence.

Firstly, plaintiff's unopposed motion for an Order pursuant to CPLR 2001 correcting defendant's name in the caption and amending [*4]the pleading is granted. Defendant shall be named as Northern Westchester Pizza, LLC.

As to plaintiff's summary judgment motion, it is well-settled that on a motion for summary judgment, the Court is called upon to determine whether a bona fide issue exists. The proponent of a 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 from the case. See, e.g., Alvarez v. Prospect Hospital, 68 NY2d 320, 324 (1990); Zuckerman v. City of New York, 49 NY2d 557 562 (1980). Although the papers are carefully scrutinized in the light most favorable to the party opposing the motion, see Robinson v. Strong Memorial Hospital, 98 AD2d 976 (4th Dept. 1983), and summary judgment should not be granted where there is any doubt as to the existence of a triable issue of fact, see Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223, 231 (1978), bald, conclusory assertions and the "shadowy semblance of an issue" are insufficient to defeat a summary judgment motion. Ehrlich v. American Moninga Greenhouse Manufacturing Corp., 26 NY2d 255, 259 (1970); see, also, S.J. Capelin Associates v. Globe Mfg. Co., 34 NY2d 338 (1974); Blankman v. Incorporated Village of Sands Point, 249 AD2d 349 (2nd Dept. 1998). Rather, it is incumbent upon a party who opposes a summary judgment motion to "assemble, lay bare and reveal his proofs, in order to show that the matters set up in his [pleading] are real and capable of being established upon a trial." DiSabato v. Soffes, 9 AD2d 297, 301 (1st Dept. 1959), app. dsmd. 11 AD2d 660 (1st Dept. 1960); see, also, S. J. Capelin Associates v. Globe Mfg. Co., supra; Seaman-Andwall Corp. v. Wright Machine Corp., 31 AD2d 136 (1st Dept. 1971), affd. 29 NY2d 617 (1971). "While negligence cases do not generally lend themselves to resolution by motion for summary judgment, such a motion will be granted where the facts clearly point to the negligence of one party without any fault or culpable conduct by the other party (citations omitted)." Cummins v. Rose, 185 AD2d 839 (2nd Dept. 1992).

Defendant's protestation to the contrary notwithstanding, plaintiff prima facie has demonstrated that plaintiff sustained a statutory serious injury where, in his moving papers, he submitted a copy of the certified Hospital records which establish that plaintiff had sustained fractured ribs, see CPLR 4518; CPLR 2306, and in his replying papers he has submitted an affirmed medical report from examining physician Michael R. Rosen, which references plaintiff's fractured ribs, as confirmed by a CAT scan performed on the accident date. A serious injury is defined in relevant part as a fracture, see Insurance Law §5102, subd. (d); thus, plaintiff prima facie has demonstrated entitlement to judgment thereon. See Lanpont v. Savvas Cab Corp., Inc., 244 AD2d 208, 211 (1st Dept. 1997); see, also Bushman v. Di Carlo, 268 AD2d 920 (3rd Dept. 2001); cf. Poma v. Ortiz, 2 AD3d 616 (2nd Dept. 2003). As defendant has [*5]failed to raise any triable issue of fact with respect thereto, plaintiff is entitled to entry of judgment on the issue of his having sustained a statutory threshold injury.

Plaintiff also prima facie has demonstrated entitlement to judgment on the issue of liability by demonstrating that defendant had crossed over the double yellow line in violation of Vehicle and Traffic Law Section 1126, subdivision (a), which act was the proximate cause of the ensuing crash. See Marsicano v. Dealer Storage Corp., 8 AD3d 451 (2nd Dept. 2004); Demetri v. Mallari, 295 AD2d 395 (2nd Dept. 2001). Defendant woefully has failed in its duty to offer a non-negligent explanation for the crash. See Pfaffenbach v. White Plains Express Corp., 17 NY2d 132 (1966); Arrowitz v. Arrowitz, 279 AD2d 440 (2nd Dept. 2001); Studnick v. Selesnick, 265 AD2d 321 (2nd Dept. 1999); Simpson v. Simpson, 222 AD2d 984 (3rd Dept. 1995).

Any speculation by defendant regarding whether plaintiff should have anticipated Mr. Azru's crossing over and/or could have done something to have avoided the accident where plaintiff's unrefuted testimony is that everything happened in seconds, plainly is insufficient to raise any triable issue of fact concerning plaintiff's comparative fault. See Sears v. Doviak, 306 AD2d 681 (3rd Dept. 2003); Jennings v. Ellsworth, 301 AD2d 812 (3rd Dept. 2003), lv. to app. den. 100 NY2d 504 (2004); Whitfield v. Toense, 273 AD2d 877 (4th Dept. 2000).

Moreover, to the extent that defendant has attempted to raise an issue regarding whether Mr. Azru, at the time of the crash, was on his own time or was engaged in the furtherance of defendant's business, the Court, having herein above cited in full defendant's president's testimony regarding this very issue, necessarily finds defendant's reference to Mr. Maestri's testimony at page 14, lines 13-25 as support for defendant's contention that a factual issue has been raised with respect thereto is an aberrant interpretation of Mr. Maestri's testimony; nowhere did Mr. Maestri testify, as defense counsel claims, that "it was not uncommon for pizza delivery men, like Mr. Arzu, to return to their home following a delivery ..." The record only supports the finding that Mr. Azru, at the time of this collision, was returning from making a pizza delivery and was expected to return to the restaurant. It is most telling with respect to this issue that defendant has failed to submit an affidavit from the store manager who had been working on the accident date specifically stating that Mr. Azru was not expected back at the restaurant at that time.

Plaintiff's motion is thus granted in toto. If plaintiff has not yet filed his note of issue, he shall do so within fifteen (15) days after the date of entry of this Order. The parties shall appear at 9:30 a.m. on June 1, 2006, for the scheduling of an assessment of damages.

Dated: April 24, 2006

White Plains, New York

_________________________________

MARY H. SMITH

J.S.C. Footnotes

Footnote 1:Mr. Arzu died as a result of the injuries he sustained in this accident.