Jacobs v Herrera

[*1] Jacobs v Herrera 2004 NY Slip Op 50929(U) Decided on August 20, 2004 District Court Of Nassau County, First District 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 20, 2004
District Court of Nassau County, First District

DAVID B. JACOBS,

against

JOSE L. HERRERA and JENNIE C. HENRIQUEZ, Defendant(s)



8749/01

Scott Fairgrieve, J.

DECISION AFTER TRIAL

This case involves the interesting issue of whether a plaintiff may recover increased insurance premium costs incurred over a span of 5 years after an automobile accident? Further, should the plaintiff be allowed to cross examine a defendant with his deposition testimony when the plaintiff has failed to return the deposition transcript in accordance with CPLR 3116(a)?

The accident occurred in June 26, 1998 at about 11:00 p.m. on the Southern State Parkway ("Southern State"), involving three vehicles in the eastbound right hand lane, approximately 1/4 mile west of Nassau Road, in the Town of Hempstead.

TESTIMONY OF JOSE HERRERA - DEFENDANT

Defendant, Jose Herrera testified that he was not involved in any automobile accident on June 26, 1998. Mr. Herrera states that he drove from his church in Hempstead onto Peninsula Boulevard, and then traveled onto the Southern State headed toward Bay Shore. He went into the right lane of the Southern State when the rear tire on the passenger side of his vehicle exploded while traveling around 10 miles per hour. Mr. Herrera pulled his vehicle off the road onto the shoulder to fix the tire. He denies that his vehicle had any contact with the other vehicles. While attending to his own vehicle, he heard the accident behind him. The witness exited his vehicle and observed two cars that were involved in a rear end collision.

Mr. Herrera testified that the police came to the scene and told him that he wasn't involved with the accident. He estimates that a few minutes went by between the time of the blow out and [*2]the accident. The witness doesn't know which car was first in the accident.

Importantly, Mr. Herrera testified that he fixed the tire after the accident, and that members of his church came to help fix the tire.

Two evidentiary issues arose during the testimony of Mr. Herrera. Plaintiff David B. Jacobs (a non-practicing attorney) attempted to impeach defendant Herrera by his deposition testimony. Counsel for Herrera objected to the use of a deposition transcript to impeach Mr. Herrera, because neither he, nor his client, were provided with the transcript. The Court upheld the objection due to the prejudice to a witness being impeached with deposition testimony not previously provided. Plaintiff claimed that he sent the transcript to defendant, but offered no cover letter, nor proof of mailing to substantiate his claim. This issue is explored later herein.

Co-defendant urged the Court to draw an unfavorable witness charge because Mr. Herrera failed to have people from the church testify to the fact that his tire was changed after the accident. The Court agrees that an unfavorable inference may be drawn by the failure of defendant to have people from his church testify to support his testimony that the tire was changed after the accident.

TESTIMONY OF PLAINTIFF DAVID B. JACOBS

Plaintiff stated that he was traveling eastbound on the Southern State between 50 - 55 miles per hour at the time of the accident, and the conditions were clear and dry on June 26, 2004 at about 11:00 p.m. He observed Mr. Herrera's vehicle about 400 feet ahead. The Herrera vehicle was located about 15 feet off the road on the grass and stopped; it was positioned in a slanted northeast direction. The Herrera vehicle had no lights on.

The co-defendant Jennie C. Henriquez was driving in the middle lane and was approximately 3 - 4 car lengths ahead when plaintiff observed the Herrera vehicle 400 feet away.

The Herrera vehicle which moved into the right lane caused the Henriquez vehicle, which had moved from the middle lane into the right lane, to immediately stop. The plaintiff hit the back of defendant's car lightly, but no damage was caused. He doesn't remember if there was contact between the Herrera and Henriquez' vehicles.

Plaintiff was insured by GEICO from 1993 - 1998 and had 300/500 coverage. He paid for coverage semi-annually in May and November each year. His premium for the year starting in May of 1998 for liability coverage provided by GEICO was $2,052.00 paid on a semi-annual basis. The coverage provided for, included $300,000.00/$500,000.00 liability coverage. The plaintiff claimed that his premium increased to $3,681.00 for the year 1999, because GEICO moved him into the assigned risk program due to the aforementioned accident. Plaintiff didn't introduce any documentation to substantiate this claim other than his testimony. Plaintiff stated that GEICO did [*3]not make any payments to settle any claims. The plaintiff stated that his annual premium for 2000 - 2001 from GEICO for the same coverage amounted to $3,852.00.

In 2001, plaintiff reduced his coverage for liability to 25/50 with the annual premium of $3,296.00 for the year 2001 - 2002, with GEICO. For the year 2002 - 2003, plaintiff paid $2,164.00 for liability coverage of 25/50 from AIG. The plaintiff paid $1,744.00 for 25/50 coverage from Liberty for 2003 - 2004. In May of 2004, he expended $1,046.00 for 300/500 coverage.

TESTIMONY OF DEFENDANT - JENNIE C. HENRIQUEZ

On June 26, 1998, Ms. Henriquez was traveling in the right hand lane of the Southern State when Mr. Herrera drove his vehicle from the grassy area into the right hand lane. She couldn't move her vehicle into the middle lane because of traffic. She brought her vehicle to a stop when the plaintiff hit the rear of her vehicle very slightly.

Ms. Henriquez saw about 10 people from the co-defendant's church on the side of the road. There were no lights on the Herrera vehicle which darted out into the highway. Ms. Henriquez testified that contrary to Mr. Herrera's testimony, the Herrera vehicle drove off after the accident and Mr. Herrera didn't fix his tire after the accident.

Ms. Henriquez had been going about 50 miles per hour, but slowed down to about 30 - 40 and braked.

Plaintiff hit her vehicle about 2 - 3 seconds after Ms. Henriquez brought her vehicle to a stop.

DECISION

Based upon the testimony, the Court finds that the defendant Herrera caused the accident and is 100% responsible for same. Having found defendant Herrera responsible for the accident, can plaintiff recover any damages for the increased insurance premiums cost allegedly caused by the accident?

This action closely parallels a Justice Town Court of Mendon, Monroe County action where a plaintiff sought damages in small claims court resulting from a car accident. Plaintiff claimed damages as "the difference between automobile insurance premiums he will have to pay for the next three years versus the lower premiums he would have had to pay over that same time period had the accident not occurred." (Johnson v. Broomfield, 153 Misc. 2d 113 [1991]).

There, the Court found that the defendant was at fault for causing the accident; however, [*4]when examining the issue of damages, the Court noted that it was constrained to "the natural and proximate consequences, and not the remote consequences of a wrongful act." (Id. at 114).

Moreover, New York Jurisprudence, Second Ed § 116 states that when calculating the measure and elements of compensatory damages, a party's liability in tort cases are limited to reasonable and probable consequences of non-willful, non-intentional or non-malicious acts: "But except in cases of willful, intentional, or malicious acts, the damages for which a party is liable in tort are limited to such consequences of his act as may properly be said to be the reasonable and probable consequences."

The Court in Johnson went on the state: A defendant is liable only for such damages as are the natural and direct or proximate consequences of his wrongful acts or omissions, and this rule is applicable to actions for breach of contract as well as to actions based upon a tort as is the situation in this case. The principle that damages are recoverable only for such injuries as flow directly from, and as the probable and natural result of, the wrong complained of, necessarily excludes all those consequences of the act which are remote and indirect. No one is answerable in law for all the remote consequences of his own acts or of the acts of another for whom he is responsible. Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99 (1928); Silvernail v. Hallenback, 33 Misc.2d 83, 226 N.Y.S.2d 48 (Sup.Ct., Albany County, 1962), 36 N.Y.Jur.2d, Damages § 13. In short, a party is entitled to recover damages for all injuries, and only such injuries, as are the direct, natural and proximate result of the tortuous conduct and, for only those damages that, in the ordinary course of events, can be said to have been foreseen, contemplated or expected by the parties. This Court finds, as a matter of law, that it would not have been foreseen, contemplated or expected by this defendant that an accident, wholly his fault, would result in the plaintiff having increased automobile insurance premiums and the Plaintiff's claim is therefore denied.

Even though the defendant Herrera is liable for causing the accident, defendant cannot be held liable for the plaintiff's alleged increased insurance premiums. To permit such a recovery in negligence actions is too remote and speculative, and not within the ambit of damages collectible. Additionally, plaintiff failed to prove by competent evidence, any increase insurance cost from the accident. Based upon the above, the plaintiff's claim is denied.

EFFECT OF FAILURE TO COMPLY WITH CPLR 3116(A)

The Court denied use by the plaintiff of defendant Herrera's deposition for cross examination. The Court denied use of the prior deposition because there was no compliance with CPLR 3116. CPLR 3116 requires a party to send the deposition transcript to an opposing party for review and signature prior to its use for cross examination. In Palumbo v. Innovative Communication Concepts,

Inc., 175 Misc. 2d 156, 668 N.Y.S.2d 433 (Sup. Ct., N.Y. County [1997]), the Court explained the procedure to follow before use of a deposition transcript: There are several alternative predicates to the use of a deposition transcript pursuant to CPLR 3117. CPLR 3116(a) provides that the transcript must be submitted to the witness so that the witness can read it and make any changes to it that are desired. The witness then is to sign the transcript under oath. If that procedure is followed, then the transcript may be utilized. Furthermore, where the deposition witness is a party, and the transcript has been certified, pursuant to CPLR 3116(b), by the officer before whom the deposition was taken, then the transcript is usable as an admission (Newell Co. v. Rice, 236 A.D.2d 843, 653 N.Y.S.2d 1004 [4th Dept 1997]). In order to use a transcript that is not signed by the witness, if the witness is a non-party, or, if a party and the transcript is not signed by the witness or certified, it is the burden of the party wanting to use the deposition transcript to show that the transcript was sent to the witness to be reviewed for any corrections, and that sufficient time to do so has passed (see, Siegel, 1993 Supp. Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3116:1, 1997-1998 Pocket Part, at 94). Those wanting to use a deposition transcript under these circumstances must show that the witness was given the opportunity that CPLR 3116(a) provides to the witness to make sure that the transcript is correct in form and substance. Otherwise, the proponent of the transcript may be relying on an inaccurate transcript. None of the alternatives above was followed by any of the parties here. Defendant's attorney's objection is correct that plaintiff's attorney has improperly utilized witnesses' transcripts before returning them for signature. Furthermore, it was not permissible for plaintiff's attorney to have quoted from the transcripts without attaching copies of them (Zuckerman v. City of New York, 49 N.Y.2d 557, 563, n. 3 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980]; see, Lamberta v. Long Is. R. R., 51 A.D.2d 730, 379 N.Y.S.2d 139 [2d Dept 1976]). Thus, the use of all of the transcripts was improper, and the movants have not sustained their burden of showing that they are entitled to summary judgment.

In the case at bar, plaintiff failed to comply with CPLR 3116(a) in allowing Mr. Herrera adequate time to review his deposition testimony before being cross examined. It would be highly improper and prejudicial to allow a party to conduct an examination before trial of another party, not return the transcript and then attempt to ambush the witness through cross examination, by use of the transcript. Parties should be barred from using deposition transcripts when the procedures [*5]established in CPLR 3116(a) are not followed.

MISSING WITNESS INFERENCE

This Court agrees with the request to draw an unfavorable inference, because Mr. Herrera failed to call any member of his church to support his claim that he was changing the tire of his vehicle at the time of the accident. See PJI 1:75

So ordered:

DISTRICT COURT JUDGE

Dated: August 20, 2004

CC:David B. Jacobs, pro se

Serpe, Andree & Kaufman

Martyn, Toher, Esposito, Martyn, Adler and Borsetti

SF/mp