Miller v Sinai Van Serv., Inc.
Annotate this CaseDecided on December 19, 2011
Supreme Court, Kings County
Andre Miller, Plaintiff,
against
Sinai Van Service, Inc., Blas Diaz and Roberto Estevez, Defendants.
16338/2011
Peter P. Sweeney, J.
The following papers numbered 1 to 4 read on plaintiff's
motion for partial summary judgment as to liability: PapersNumbered:
Notice of Motion/Order to Show Cause
Affidavits/Affirmations - Exhibits....................................................................1-2 (A-E)
Answer Affidavits/Affirmations - Exhibits......................................................3
Reply Affidavits/Affirmations - Exhibits..........................................................4
Other ..................................................................................................................
Upon the foregoing papers the within motion is decided as follows:
In this action to recover damages for personal injuries sustained as a result of a motor vehicle accident, plaintiff Andre Miller moves for an order granting him partial summary judgment against the two defendant drivers on the issue of their liability.
The only admissible proof that plaintiff submitted in support of the motion was his own affidavit. The uncertified police accident report which contains recorded statements attributable to the two defendant drivers is inadmissible hearsay and totally lacking in probative value (see Rivera v. GT Acquisition 1 Corp., 72 AD3d 525, 526 [1st Dept, 2010]; Coleman v. Maclas, 61 AD3d 569 [1st Dept, 2009]; see Casey v. Tierno, 127 AD2d 727, 727 [2nd Dept, 1987] ). Plaintiff's complaint, which was verified by his attorney, and the affirmation by plaintiff's attorney, who has no personal knowledge of the accident, both lack probative value (Feffer v. Malpeso, 210 AD2d 60, 60 [1st Dept, 1994), quoting, Joosten v. Gale, 129 AD2d 531, 535 [1st Dept, 1987]; Johnson v. Phillips, 261 AD2d 269, 270—271 [1st Dept, 1999]; Coleman v. Maclas, supra at 569). [*2]
In his affidavit, plaintiff averred that he was involved in an intersection accident on July 1, 2011, when the vehicle in which he was a passenger, which was owned and operated by defendant Roberto Estevez, collided with a vehicle operated by defendant Blas Diaz. He further averred that he was wearing a seat belt and that he did not contribute to the happening of the accident in any way. Plaintiff did not describe the accident, nor did he describe any negligent act or omission attributable to the defendant drivers.
Only defendants Sinai Van Service Inc. and Diaz submitted written opposition to the motion which consisted of an attorney's affirmation.
On a motion for summary judgment, the proponent "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 . . ." ( Winegrad v. New York Univ. Med. Center, 64 NY2d 851, 852 [1985] ). If the proponent fails to make this showing, the motion must be denied "regardless of the sufficiency of the . . . opposing papers ( 68 NY2d at 324). Only if the proponent makes a prima facie showing of entitlement to judgment as a matter of law does the burden shift to the parties opposing the motion to produce admissible proof establishing that a material issue of fact exists requiring a trial (see Alvarez v. Prospect Hospital, 68 NY2d 320, 324 [1986] ).
Here, plaintiff's affidavit established only his freedom from negligence and that he was involved in a motor vehicle accident on July 1, 2011. "Negligence cannot be presumed from the mere happening of an accident" ( Mochen v. State of New York, 57 AD2d 719, 720 [4th Dept, 1977]; Rella v. State, 117 AD2d 591, 592 [ 2nd Dept,1986]). Clearly, plaintiff did not make out a prima facie showing of his entitlement to judgment as a matter of law on the issue of the negligence of the defendant drivers.
Plaintiff's erroneously cites Garcia v. Tri-County Ambulette Service, Inc. 282 AD2d 206 [2001] for the proposition that since he was an innocent passenger, who did not contribute to the happening of the accident, he is entitled to award of partial summary judgment against the two defendant drivers of the issue of their negligence. In Garcia, the plaintiff was a passenger in the rear seat of an ambulette when it was involved in an intersection accident with another vehicle. Both drivers maintained that they had a green light to enter the intersection. In the lower court, plaintiff's motion for partial summary judgment on the issue of liability against the two drivers was denied. The Appellate Division reversed, finding that the plaintiff, "as an innocent rear-seat passenger in one of the vehicles who cannot possibly be found at fault under either defendant's version of the accident, [was] entitled to partial summary judgment"( 282 AD2d at 207).
The Court did not, however, as plaintiff suggests, hold that the plaintiff was entitled to summary judgment against the defendant drivers on the issue of their negligence. The Court held only that plaintiff's motion for partial summary judgment should have been granted "to the extent of finding no culpable conduct by plaintiff on the issue of liability" (282 AD2d at 207). [*3]
Plaintiff's reliance on Johnson v. Phillips, 261 AD2d 269 [1st Dept, 1999] is likewise misplaced. In Johnson, the Court held that the plaintiff, who was an innocent passenger in a vehicle that was rear-ended, was entitled to partial summary judgment against the driver who was following too closely even though there were "potential issues of comparative negligence as between that defendant and the driver of the vehicle in front" (261 AD2d at 272, 690 N.Y.S.2d 548). In Johnson, the Court did not hold that the two defendant drivers should have been found negligent as a matter of law simply because plaintiff was an innocent passenger.
This Court has reviewed the other cases cited by the plaintiff and finds that they do not support plaintiff's position that he is entitled to partial summary judgment on the issue of the negligence of the defendant drivers on the proof submitted. In sum, since the plaintiff did not make out a prima facie showing that either of the defendant drivers was negligent as a matter of law, the motion, to the extent its seeks an order granting plaintiff summary judgment on the issue of their negligence is DENIED, regardless of the sufficiency of the papers submitted in opposition.
Nevertheless, since defendants' failed to submit any admissible proof in opposition to the motion raising a triable issue of fact as to whether plaintiff was negligent, the motion is GRANTED to the extent that defendants' defenses based on their contentions that plaintiff's own negligence contributed to the accident are hereby stricken.
Accordingly, it is hereby
ORDERED that plaintiff's motion for partial summary judgment is granted to the extent indicated above.
This constitutes the decision and order of the Court.
Dated: December 19, 2011_______________________________
PETER P. SWEENEY, A.J.S.C.
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