Bertuccio v Santana

[*1] Bertuccio v Santana 2009 NY Slip Op 51468(U) [24 Misc 3d 1216(A)] Decided on July 10, 2009 Supreme Court, Richmond County McMahon, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 10, 2009
Supreme Court, Richmond County

Louis Bertuccio, Plaintiff(s),

against

Christopher Santana and Big Apple Moving Storage, Inc., Defendant(s).



100107/2008

Judith N. McMahon, J.

On September 10, 2007, the plaintiff Louis Bertuccio allegedly sustained serious injuries after the car he was driving was struck by another vehicle, on 4th Avenue, between 25th and 26th Street in Brooklyn, New York. Plaintiff's vehicle was allegedly struck in the rear by a moving truck owned by the defendant Big Apple Moving Storage Inc. (hereinafter "Big Apple"), and operated by the defendant Christopher Santana. On or about January 9, 2008, plaintiff commenced this negligence action.

Presently, issue has been joined and discovery is complete. Plaintiff is now moving for an order precluding and/or striking defendant Santana's answer for his willful failure to appear for an examination before trial, and plaintiff is also seeking summary judgment on liability and the issue of serious injury. The defendant Big Apple is also moving for summary judgment seeking to dismiss the complaint on the ground that the defendant Big Apple is not liable because defendant Santana lacked permission to operate their vehicle at the time of the accident and on the ground that plaintiff did not sustain a serious injury pursuant to Insurance Law § 5102(d).

I.Plaintiff's motion seeking preclusion and/or an order striking Defendant Santana's answer [Motion No 002]

This court initially held a preliminary conference whereby the defendant Santana was directed to appear for an examination before trial (hereinafter "EBT") on June 19, 2008. The defendant failed to appear. The court subsequently ordered the defendant Santana to appear for an EBT on several occasions where he again failed to appear. In addition, the parties themselves rescheduled the EBT on several occasions but defendant Santana never appeared. At this juncture, defendant Santana has failed to appear for his scheduled EBT on more than six occasions. Finally, on November 18, 2008, this court ordered defendant Santana to appear for an EBT on November 24, 2008 or the defendant Santana would face preclusion and/or have his answer stricken.

It is well settled that "the penalty of preclusion is extreme and should only be imposed when the failure to disclose has been willful or contumacious" (Kingsley v. Kantor, 265 AD2d 529, 530 [2d Dept., 1999]; Nicoletti v. Ozram Transportation, Inc., 286 AD2d 719, 719 [2d Dept., 2001]; Garcia v. Kraniotakis, 232 AD2d 369, 370 [2d Dept., 1996]). Striking an answer is [*2]appropriate when there is "a clear showing that the failure to comply with discovery demands is willful, contumacious, or in bad faith" (Mendez v. City of New York, 7 AD3d 766, 767 [2d Dept., 2004]; Simpson v. City of New York, 10 AD3d 601, 602 [2d Dept., 2004]).In support of plaintiff's motion to strike, plaintiff has met their burden establishing that the defendant's default was "willful or contumacious" (id). The plaintiff has shown that defendant Santana failed to appear for an EBT on more than six scheduled and court ordered occasions. Further, this court's order dated November 18, 2008, specifically directed defendant Santana to appear on or before November 24, 2008 or he would face the penalty of preclusion and/or have his answer stricken. At this point, defendant Santana's failure to appear at the EBTs is clearly willful, contumacious and lacks any adequate excuses, and is a complete disregard for this court's numerous orders, including preclusion (Kingsley v. Kantor, 265 AD2d 529, 530 [2d Dept., 1999][finding plaintiff precluded from offering further evidence, where plaintiff had failed to comply with numerous court orders and offered inadequate excuses for their defaults]; Nicoletti v. Ozram Transportation, Inc., 286 AD2d 719, 719 [2d Dept., 2001][finding defendant's answer stricken, where defendant repeatedly failed to comply with plaintiff's discovery demands, failed to comply with a conditional order of preclusion and where defendant offered inadequate excuses for its default]; Garcia v. Kraniotakis, 232 AD2d 369, 370 [2d Dept., 1996][finding defendant precluded from testifying at trial, where defendant had not complied with two separate court orders and had offered either no excuse or inadequate excuses for their defaults]). In this case, the Court finds defendant Santana's willful failure to appear at the multiple EBTs willful and contumacious and as a result defendant Christopher Santana's answer is hereby stricken.

II.Plaintiff and Defendant's motion seeking summary judgment on liablity

(Motions 002 & 003)

It is well settled that summary judgment is a drastic remedy that should not be granted where there is any doubt as to the existence of triable issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Herrin v Airborne Freight Corp., 301 AD2d 500, 500-501 [2d Dept 2003]). The party moving for summary judgment bears the initial burden of establishing its right to judgment as a matter of law (see Winegard v. New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]), and in this regard "the evidence is to be viewed in a light most favorable to the party opposing the motion, giving [it] the benefit of every favorable inference" (Cortale v. Educational Testing Serv., 251 AD2d 528, 531 [2d Dept 1998]). Nevertheless, upon a prima facie showing by the moving party, it is incumbent upon 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" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]).

Generally, "a driver of a vehicle approaching another vehicle from the rear is required to maintain a reasonably safe rate of speed and control over his or her vehicle and to exercise reasonable care to avoid colliding with the other vehicle" (Vavoulis v. Salem, 43 AD3d 1154, 1155 [2d Dept., 2007]; Macauley v. ELRAC, Inc., 6 AD3d 584 [2d Dept., 2004]; Filippazzo v. Santiago, 277 AD2d 419, 419 [2d Dept., 2000]). "A rear-end collision is sufficient to create a prima facie case of liability and imposes a duty of explanation with respect to the operator of the offending vehicle"(Macauley v. ELRAC, Inc., 6 AD3d 584 [2d Dept., 2004]; Filippazzo v. [*3]Santiago, 277 AD2d 419, 419 [2d Dept., 2000]; Levine v. Taylor, 268 AD2d 566, 566 [2d Dept., 2000]).

The Court notes that defendant Santana has failed to oppose plaintiff's summary judgment motion on liability and therefore the portion of plaintiff's motion for summary judgment on liability with respect to defendant Santana is hereby granted.

With respect to defendant Big Apple, the plaintiff has also established her entitlement to summary judgment, as the evidence indicates that her vehicle was struck in the rear by the defendant's vehicle (Vavoulis v. Salem, 43 AD3d 1154, 1155 [2d Dept., 2007]). In opposition, defendant Big Apple has failed to raise a question of fact regarding whether there exists a non negligent explanation for the cause of the accident (Macauley v. ELRAC, Inc., 6 AD3d 584 [2d Dept., 2004]; Filippazzo v. Santiago, 277 AD2d 419, 419 [2d Dept., 2000]; Levine v. Taylor, 268 AD2d 566, 566 [2d Dept., 2000]). The Court notes that defendant Big Apple and defendant Santana initially filed a collective answer, wherein, defendant Big Apple failed to claim permissive use as an affirmative defense and further has failed to claim permissive use at any other time prior to this motion. Defendant Big Apple's claim of permissive use at this point creates a feigned question of fact and is insufficient to rebut plaintiff's prima facie showing of entitlement to summary judgment. Therefore, it is appropriate to grant plaintiff's motion for summary judgment on liability, with respect to defendant Big Apple.

With respect to defendant Big Apple's summary judgment motion on liability, Vehicle and Traffic Law § 388 creates "a strong presumption of permissive use which can only be rebutted with substantial evidence sufficient to show that the driver of the vehicle was not operating the vehicle with the owner's express or implied permission" (Talat v. Thompson, 47 AD3d 705, 705 [2d Dept., 2008]; Murphy v. Carnesi, 30 AD3d 570, 571 [2d Dept., 2006]; In Matter of New York Central Mutual Fire Insurance Co. v. Dukes, 14 AD3d 704, 705 [2d Dept., 2005]). "The uncontradicted testimony of a vehicle owner that the vehicle was operated without his or her permission, does not, by itself, overcome the presumption of permissive use" (Talat v. Thompson, 47 AD3d 705, 705 [2d Dept., 2008]; In Matter of New York Central Mutual Fire Insurance Co. v. Dukes, 14 AD3d 704, 705 [2d Dept., 2005]).

As indicated above, triable issues of fact exist regarding whether defendant Santana had permission to operate Big Apple's vehicle on September 10, 2007 (Talat v. Thompson, 47 AD3d 705, 705 [2d Dept., 2008]; Murphy v. Carnesi, 30 AD3d 570, 571 [2d Dept., 2006]; In Matter of New York Central Mutual Fire Insurance Co. v. Dukes, 14 AD3d 704, 705 [2d Dept., 2005][finding that the testimony of the insured was insufficient in establishing that the vehicle was stolen or that the insured did not give anyone permission to operate the vehicle at the time of the accident]). Specifically, defendant Big Apple has submitted an affidavit from Joseph Clements, the President and Owner of defendant Big Apple, who stated that defendant Santana did not have the consent of defendant Big Apple to operate their moving truck on the date of the alleged accident and that defendant Santana was aware of Big Apple's policy that the vehicles were not to be used for employee's personal use.

However, Clements also stated that Santana had possession of the key to the Big Apple truck involved in the accident at issue and that Clements was unaware if defendant Santana took the Big Apple truck on the morning of September 10 2007, prior to the alleged accident. [*4]Defendant Big Apple has failed to overcome the strong presumption of permissive use, namely questions of fact exist regarding whether defendant Santana had permission to use the moving truck on the date of the accident, therefore, summary judgment is inappropriate on liability for defendant Big Apple (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Talat v. Thompson, 47 AD3d 705, 705 [2d Dept., 2008]; In Matter of New York Central Mutual Fire Insurance Co. v. Dukes, 14 AD3d 704, 705 [2d Dept., 2005]). III.Plaintiff and Defendant's motions seeking summary judgment on threshold

(Motion Nos 002 and 003)

The defendant Big Apple has made a prima facie showing of entitlement to summary judgment by submitting proof in admissible form sufficient to establish that the plaintiff did not sustain a serious injury, as defined by Insurance Law § 5102(d) (Toure v. Avis Rent A Car Sys, 98 NY2d 345 [2002]; Chou v. Welsh, 15 AD3d 622 [2d Dept. 2005]).

A defendant can establish that "plaintiff's injuries are not serious within the meaning of Insurance Law §5102(d) by submitting the affidavits or affirmations of medical experts who examined the plaintiff and conclude that no objective medical findings support the plaintiff's claim, with this established the burden shifts to the plaintiff to come forward with evidence to overcome the defendant's submissions by demonstrating a triable issue of fact that was serious injury was sustained within the meaning of the Insurance Law" (Grossman v. Wright, 268 AD2d 79, 84 [2d Dept., 2000]; Fung v. Uddin, 60 AD3d 992, 993 [2d Dept., 2009]; Positko v. Krawiec, 6 AD3d 517, 518 [2d Dept., 2004]).

In opposition, the plaintiff, submitted the report of Dr. Antonio D'Esposito who opined that the plaintiff's injuries were consistent with musculoskeletal injuries. Plaintiff also submitted an affirmation of Dr. Sasson, who opined that plaintiff suffered "severe traumatic injury to his neck, left shoulder and left knee," as a result of this accident. Dr. Sasson further testified that on April 29, 2008, that plaintiff received a total knee replacement. Through objective medical evidence both parties have shown that multiple triable issues of fact exist on the issue of serious injury, which precludes the court from granting summary judgment for either party (Toure v. Avis Rent A Car Sys., 98 NY2d 345 [2002]; Mauro v. Gold Star Limo Corp., 8 AD3d 352 [2d. Dept. 2004]; Fabiano v. Kirkorian, 306 AD2d 373 [2d Dept. 2003]).

Accordingly, it is,

ORDERED that plaintiff's motion (002) seeking to strike defendant Christopher Santana's answer is hereby granted, and it is further

ORDERED that the defendant Christopher Santana's answer is hereby stricken, and it is further,

ORDERED the plaintiff's motion (002) for summary judgment on liability is hereby granted as against both defendants, and it is further

ORDERED that defendant Big Apple's motion (003) for summary judgment on liability is hereby denied, and it is further [*5]

ORDERED that the plaintiff's motion (002) for summary judgment on the issue of serious injuries is hereby denied, and it is further

ORDERED that the defendant Big Apple's motion (003) for summary judgment on the issue of serious injuries is hereby denied, and it is further

ORDERED that any and all additional requests for relief are hereby found to be completely without merit, and it is further

ORDERED that the Clerk enter Judgment accordingly.

ENTER,

Dated: July 10, 2009________________________

Hon. Judith N. McMahon

Justice of the Supreme Court