Rosenblatt v Dini
Annotate this CaseDecided on November 19, 2004
Supreme Court, Queens County
LOIS ROSENBLATT, as Public Administrator for the Estate of PEI ZHANG, Deceased, , Plaintiff,
against
LOUIS DINI and ELRAC, INC., Defendants.
16306/2001
Roger N. Rosengarten, J.
This action arises out of an incident which resulted in the death of Pei Zhang, whose estate is represented by the Public Administrator, and the conviction of defendant, Louis Dini, for criminally negligent homicide in connection with Zhang's death.
Shortly before noon on December 1, 2000, the defendant Dini was operating a car owned by defendant, Elrac, Inc., on Richmond Terrace near Nicholas Avenue in Staten Island, New York when he encountered Zhang selling merchandise on the roadside. Dini stopped his car, rolled down the front passenger window, and asked the decedent if he had any CDs for sale. Zhang handed him some [*2]CDs through the open window on the passenger side of the car. During the course of the transaction, there was an altercation and Dini stepped on the gas while Zhang was leaning into the car through the side window with his upper torso inside the car. The car struck a utility pole, almost immediately, and turned over. Zhang was thrown to the ground and declared dead at the scene. Defendant, Louis Dini, was arrested and indicted for manslaughter in the second degree based upon a finding of reckless conduct. On February 1, 2002, he plead guilty to criminally negligent homicide and was sentenced to six months imprisonment and five years probation.
The defendant, Elrac, Inc., has moved for summary judgment dismissing the cause of action for conscious pain and suffering of decedent, Pei Zhang, and the defendant, Louis Dini, has cross moved for the same relief. Discovery has now been completed in this action and all the evidence shows that Zhang was rendered unconscious by the impact and was probably dead when his body landed on the ground. Several witnesses were deposed who responded to the accident scene and observed the decedent lying on the ground. They all agreed, that he did not move, moan or cry out and that he appeared to be lifeless. In the absence of direct or circumstantial evidence, a claim for conscious pain and suffering must be dismissed. (Cummins v County of Onondago, 84 NY2d 322; Zurita v McGinnis, 7 AD3d 618; cf. Gonzalez v New York City Housing Authority, 77 NY2d 663, 670; Geller v Aza Taxi, 282 AD2d 287). "Mere conjecture, surmise or speculation is not enough to sustain" such a claim. (Fiederlein v New York City Health & Hosps. Corp., 56 NY2d 573, 574). There is also no evidence that Zhang was aware of the danger, as is required to support a finding of pre-impact terror. (See Shatkin v McDonnell Douglas Corp., 727 F2d 202; Anderson v Rowe, 73 AD2d 1030). Patricia Farless, who was in the area, saw Dini's car pass by with Zhang hanging out of the window and saw the car turn over, throwing Zhang to the ground. When deposed, this witness did not indicate that she heard the decedent cry out at anytime. Plaintiff relies upon the conclusory assertion of a forensic expert, Dr. Thanning, to the effect that Zhang experienced conscious pain and suffering from 11 to 13 seconds before the moment of impact. This is not sufficient to establish pre-impact terror and defeat summary judgment. (See Gonzalez v 98 Mag Leasing Corp., 95 NY2d 124). Accordingly, the motion and cross motion by defendants for summary judgment dismissing plaintiff's cause of action for conscious pain and suffering of Pei Zhang, are granted.
The plaintiff has cross moved for summary judgment against the defendants on liability and to strike the affirmative defense of defendant, Elrac, Inc., that it bears no responsibility for the conduct of defendant, Louis Dini, as that conduct was intentional. The conviction of defendant Dini for criminally negligent homicide estops him from relitigating the issue of his negligence in this subsequently commenced civil action. (See Grayes v DiStasio, 166 AD2d 261). The defendant Dini, however, has advanced the affirmative defense that the culpable conduct of decedent Zhang contributed to Dini's motivation for committing criminally negligent homicide. He claims that Zhang lunged at him and attempted to snatch a gold necklace he was wearing around his neck. In response, Dini stepped on the gas, expecting that Zhang would drop out of the car. Instead, Zhang grabbed at the steering wheel, causing the car to veer and strike a utility pole on the side of the roadway.
In order for the criminal conviction of defendant Dini to have estoppel effect on the issue of [*3]liability, it must be established that the identical issue in this action was necessarily decided in the criminal action since "estoppel extends only to questions distinctly put in issue and directly determined in the criminal prosecution." (Deterling v Cattie, 22 F. Supp. 2d 91, 93, quoting from DeJesus v New York City Transit Authority, 173 Misc 2d 918; also see, Allstate Ins. Co. v Zuk, 78 NY2d 41). Self-defense and provocation are not available as defenses to criminally negligent homicide, since reckless conduct cannot be in self-defense (People v Colon, 77 AD2d 370, 373). Therefore, Dini's criminal conviction did not determine the issue of whether the decedent's culpable conduct contributed to his death. (See Deterling v Cattie, supra; Captain v Hamilton, 178 AD2d 938; Cox v Howell, 170 AD2d 1039). Accordingly, summary judgment for the plaintiff on liability is granted with a trial to be held to determine the respective percentages of liability of defendant Dini and decedent Zhang. (See Jordan v Britton, 128 AD2d 315, 321-322).
Defendant, Elrac, Inc., has failed to come forward with any evidence that Louis Dini acted with the intention to injure or kill Pei Zhang, as is required to sustain the affirmative defense that it bears no responsibility for Dini's conduct. (See Staten Island-Arlington, Inc. v Wilpon, 251 AD2d 650; Drake America Corp. v Speakman Co., 144 AD2d 529). Instead, Dini's testimony that he believed Zhang would drop out of the car when he stepped on the gas, combined with his indictment and conviction of non-intentional crimes, demonstrates that defendant Dini did not intend to injure or kill Zhang. Therefore, defendant Elrac, Inc., is vicariously liable for the acts of defendant, Louis Dini, that caused the death of Pei Zhang. (VTL 388). Accordingly, the branch of plaintiff's motion for summary judgment striking the affirmative defense of defendant, Elrac, Inc., that it bears no responsibility for the conduct of Louis Dini, is granted.
Dated: November 19, 2004
J.S.C.
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