Fiero v Barclay Water Mgt., Inc.
Annotate this CaseDecided on June 8, 2006
Supreme Court, Kings County
Angelo Fiero, as Adminstratrix of the Estate of Thomas P. Fiero, and Angela Fiero, individually, Plaintiff,
against
Barclay Water Management, Inc., Lai Trust and Todd A. Brosan, Defendants.
23457/04
Francois A. Rivera, J.
Plaintiff moves for an accelerated judgment pursuant to CPLR §3212, finding all the defendants' liable for the wrongful death or Thomas P. Fiero.
On July 26, 2004, this action for personal injuries and wrongful death was commenced by the filing of a summons and verified complaint with the King's County Clerk's office. Issue was joined by the defendants' verified answer signed on September 24, 2004. On October 4, 2005, plaintiff filed the note of issue and certificate of readiness with the court, and served same on defendants.
The complaint alleges that on September 5, 2003, Todd A. Brosan, while working for Water Management, Inc. and driving a truck owned by Lai Trust, struck and fatally injured Thomas Fiero as he was walking near the vicinity of Gold and Frankfurt street in New York County. Plaintiff's verified bill of particulars set forth that Thomas Fiero died of his injuries on September 21, 2003. On October 29, 2003, Angela Fiero, Thomas Fiero's surviving spouse, obtained letters of administration from the Kings County Surrogate. She thereafter commenced this action for her husband's wrongful death and for her own injuries due to the loss of his services.
Plaintiff's motion papers consist of the affirmation of counsel and ten annexed exhibits. The exhibits include, the note of issue, the pleadings, plaintiff's bill of particulars, the deposition transcripts of Thomas A. Brosan and Angela Fiero, letters of administration to the plaintiff, the findings of Administrative Judge Marc Berger, four photographs of the adverse vehicle, and a lease agreement for the adverse vehicle. Defendants' opposition papers consist of the affirmation of their counsel and two exhibits, namely, a police accident report, and a witness statement.
There is no dispute that defendant Todd A. Brosan is the driver of the vehicle that struck Thomas Fiero, that he was employed by Barclay Water Management, Inc., and that Lai Trust is [*2]the owner of the vehicle. There is also no dispute that he was the subject of an administrative hearing conducted by the New York State Department of Motor Vehicles (hereinafter DMV) pursuant to Vehicle and Traffic Law §510.
Examination of the findings and disposition of Marc Berger, the administrative judge who presided over the DMV hearing reveals the following. At issue at the hearing was Todd A. Brosan's involvement in the fatal accident of September 5, 2003 and whether he violated VTL §§ 605 and 1211. The findings and disposition of the administrative judge reflect that Todd A. Brosan testified at the hearing. He testified that he used his mirror but did not look out of his backseat rear window before backing up on Gold Street. While backing up, he felt that he struck the curb, so he continued to back up while turning the steering wheel left to straighten out the vehicle. He then felt the back of the vehicle go up. He then discovered that he struck the decedent who was lying behind his vehicle. The administrative judge found that Todd A. Brosan did not violate VTL §605. The judge found that Todd A. Brosan violated VTL §1211 when he drove his vehicle backwards and relied solely on his mirrors to decide whether he could do so safely. He then stated that Brosan's driver's license should be suspended for sixty days. Plaintiff asks this court to apply collateral estoppel and res judicata to this determination that Todd A. Brosan violated VTL §1211 in deciding the instant motion.
The following facts are derived from the deposition testimony of Todd A. Brosan. On September 5, 2003, at approximately 7:00 am, on Gold Street in New York County, Todd Brosan, was employed by the defendant Barclay Water Management, Inc. Defendant Brosan was assisting in a delivery for his employer. He parked a 2002 Ford truck, owned by defendant Lai Trust, on Gold Street in Manhattan. After completing his task, he re-entered the vehicle. After checking through the rear and side view mirrors, he began backing up the truck. Defendant admits that before and during the time he was backing up, he did not turn around to check his blind spot. While backing up, defendant Brosan felt that he struck something but did not check to see what it was. He assumed that he hit the curb but did not confirm it. He then checked his mirrors again and continued to back up. He then felt another very large bump. At that point, he exited the vehicle and observed the deceased, Mr. Fiero, under his vehicle. Defendant Brosan called 911. The police arrived and made a police report.
It is well settled that a party moving for summary judgment must make a prima facie showing that it is entitled to judgment as a matter of law (Zarr v. Riccio, 180 AD2d 734 [2nd Dept. 1992]). Once a showing has been made, the burden shifts to the party opposing the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact which require a trial of the action (Romano v. St. Vincent's Medical Center of Richmond, 178 AD2d 467 [2nd Dept. 1991]).
For the reasons set forth below, the court need not address the applicability of collateral estoppel to the findings of the DMV administrative judge. Vehicle and Traffic Law §1211 (a) states: "The driver of a vehicle shall not back the same unless such movement can be made with safety and without interfering with other traffic." Plaintiff has submitted evidence demonstrating that the defendant was negligent in backing his truck into the plaintiff and then running his truck over plaintiff again without taking adequate precautions (see, Ortiz v Calavera, 26 AD3d 319 [2nd Dept. 2006]; Garcia v Verizon NY, Inc., 10 AD3d 339 [1st Dept. 2004]). There is no dispute that Todd A. Brosan did not turn his head to look through the vehicle's rear window [*3]when he backed up. He admitted in his deposition that he relied solely on the vehicle's mirrors. There is also no dispute that he struck Thomas P. Fiero when he backed up in this unsafe manner.
This court finds, independently of the findings of the DMV administrative judge, that Todd A. Brosan's conduct indeed violated VTL §1211. There is, therefore, no need to address the applicability of the concept of collaterally estoppel to the administrative judge's findings. Furthermore, plaintiff has established a prima facie case of negligence.
Defendant's opposition papers are insufficient to raise a triable issue of fact. The affirmation of counsel demonstrates no personal knowledge of any pertinent facts to oppose the motion (Zuckerman v. City of New York, 49 NY2d 557-564 [1980]). The annexed exhibits consist of the police report and a witness statement. The witness statement is unsworn. Its contents reveal that an individual named Barry J. McKinnon, who claims that he knows the driver of the vehicle, observed the injured individual enter the street from the middle of the block before he was struck. The statement is hearsay and not competent to raise an issue of fact. Defendant's assertion that Thomas P. Fiero may have been comparatively negligent is based on the witness' statement and is therefore speculative and unsupported by admissible evidence (see Ortiz v Calavera, supra. 26 AD3d at 319).
The court finds that plaintiff has met her burden to establish entitlement as a matter of law and that defendant Brosan's negligent operation of his vehicle was the sole proximate cause of the accident. Defendants have not met their burden to raise a triable issue of fact.
Plaintiffs' motion for summary judgment on liability is granted.
The foregoing constitutes the decision and order of the court.
______________________
J.S.C.
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