Sanders v Grand Prix Driving School Inc.

[*1] Sanders v Grand Prix Driving School Inc. 2009 NY Slip Op 52186(U) [25 Misc 3d 1218(A)] Decided on September 30, 2009 Supreme Court, Kings County Rivera, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 30, 2009
Supreme Court, Kings County

Barbara Sanders and TYRONE COWARD, Plaintiffs,

against

Grand Prix Driving School Inc. and ATTILA ANDREW GUSSO, Defendants.



39027/07



Counsel:

Plaintiffs:

Proner and Proner

60 East 42nd Street Suite 1448

New York, NY 10165

212-986-3030

Defendants:

Law Office of Frank J. Laurino

999 Stewart Ave

Bethpage, NY 11714

516-349-0111

Francois A. Rivera, J.

By notice of motion filed on March 17, 2009, under motion sequence number one,

defendants, Grand Prix Driving School Inc., (Grand Prix) and Attila Andrew Gusso (Gusso) jointly move pursuant to CPLR §3212 for an order granting summary judgment in their favor on the issue of liability and dismissing the complaint. Plaintiffs oppose the motion.

BACKGROUND

On October 19, 2007, plaintiffs' commenced the instant action by filing a summons and verified complaint. Issue was joined by defendants' verified answer dated January 9, 2008. The complaint alleges the following facts in support of two causes of action. On July 15, 2007, plaintiff Barbara Sanders (Sanders) was taking motorcycle driving [*2]instructions from defendant Gusso, an employee of Grand Prix. Sanders claims that the defendants were negligent because, among other things, they chose an unsafe location to conduct the riding lesson, they failed to properly supervise the instruction and they failed to properly maintain the 1992 Honda motorcycle provided to her for the lesson. Their alleged negligence caused Sanders to strike a wall and sustain serious bodily injuries. The first cause of action pertains to the injuries sustained by Sanders. The second cause of action pertains to the loss of services sustained by her husband, Tyrone Coward (Coward) due to her injuries.

MOTION PAPERS

Defendants' motion papers consists of an affirmation by their counsel and five exhibits labeled A through F. Exhibit A is a copy of the summons and verified complaint. Exhibit B is a copy of the defendants' answer, demand for a bill of particulars and various disclosure demands. Exhibit C is a copy of the signed and certified deposition transcript of Sanders taken on May 5, 2008. Exhibit D is a copy of the signed and certified deposition transcript of Coward taken on June 20, 2008. Exhibit E is a copy of the signed and certified deposition transcript of Gusso taken on May 5, 2008. Exhibit F is an affidavit from John G. Karpovich, a traffic accident reconstructionist.

Plaintiffs' affirmation in opposition consists of an attorney's affirmation and three exhibits labeled A through C. Exhibit A is a copy of plaintiffs' verified bill of particulars. Exhibit B is a photograph of the alleged scene of the accident. Exhibit C is an affidavit of Sanders.

Defendants' reply consists of an attorney's affirmation and an affidavit from Gusso labeled exhibit G.

UNDISPUTED FACTS

Based on the deposition testimony of Sanders, Coward, and Gusso, as well as the exhibits attached to the motion papers, the following facts are undisputed. On July 15, 2007, the date of the accident, plaintiff Barbara Sanders was taking her fifth motorcycle lesson under the direct supervision of Gusso, a motorcycle driving instructor employed by Grand Prix. The four prior lessons were conducted in the last thirty days prior to the accident. All five lessons were conducted at a dead end street located at East 79th Street near the FDR Drive in New York County. The defendants provided Sanders with the same 1992 Honda motorcycle for all of her lessons. The defendants did not submit any records of the mechanical maintenance of this motorcycle. On the date of the accident, an ambulance was parked on the street. Due to the parked ambulance, the defendant Gusso did not practice doing circles with plaintiff Sanders. Sanders drove the vehicle into a wall at the end of the dead end street.

DISCUSSION

On a motion for summary judgment, the movant must establish his or her cause of action or defense sufficient to warrant a court to direct judgment in his or her favor as a [*3]matter of law (Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]). If the movant meets this burden, the party opposing the motion must then produce proof in admissible form sufficient to necessitate a trial as to material issues of fact (Laecca v. New York University, 7 AD3d 415 [1st Dept. 2004]; see also Rebecchi v. Whitmore, 172 AD2d 600 [2nd Dept. 1991]). Furthermore, to grant a motion for summary judgment, it must clearly appear that no material issue of fact is presented. The burden upon the court when deciding this type of motion is not to resolve issues of fact or credibility, but rather to determine whether indeed any such issue of fact exist (Barr v. County of Albany, 50 NY2d 247 [1980]; see also Kolivas v. Kirchoff, 14 AD3d 493 [2nd Dept 2005]).

The deposition testimony of Gusso establishes that he was employed by Grand Prix at the time of the accident and that although he was licensed and certified to teach students how to drive an automobile he had received no formal training to teach others how to drive a motorcycle. Gusso testified that he would look over the motorcycle before each lesson and that he did not see any problems or defects at the time of the accident. He offered no testimony pertaining to the mechanical maintenance of the motorcycle. The motorcycle that he provided to Sanders for her lessons belonged to Grand Prix and was a 1992 Honda. The annexed affidavit of John G. Karpovich, a traffic accident reconstructionist, pertained to his inspection of the subject motorcycle on April 14, 2008, nine months after the accident. His annexed curriculum vitae did not demonstrate that he was a qualified to mechanically maintain a motorcycle or to offer an opinion about the propriety of its maintenance. His affidavit did not claim that he was provided with the mechanical maintenance history of the motorcycle. He did, however, offer an opinion on the condition of the motorcycle which included an observation that the clutch cable and adjustment were misadjusted and not properly lubed. He also observed that the toe shifter was bent forward and the pitch bolt was loose. These observations were of little help to the defendants in meeting their burden.

The defendants have failed to meet their burden that they are entitled to summary judgment as a matter of law. The undisputed facts raises several issues which require a trial. There is a question of fact as to whether the location chosen for the motorcycle lesson was safe in general, or more particularly, whether it was safe the day of the accident due to the parked ambulance at the location. The affidavit of John Karpovich was oddly silent on this issue. Furthermore, the defendants did not submit any records pertaining to the mechanical maintenance of the fifteen year old motorcycle provided to Sanders for her lessons. Gusso's deposition testimony did not demonstrate that he was qualified to mechanically maintain the motorcycle in question or that he undertook to do so. In the absence of any evidence of the mechanical maintenance of the motorcycle, the defendants cannot meet their burden of showing that the motorcycle was properly maintained.

The defendant's motion for an order granting summary judgment dismissing the complaint is denied. [*4]

The foregoing constitutes the decision and order of the court.

__________________________

J.S.C.