Yavkina v New York City Police Dept.

[*1] Yavkina v New York City Police Dept. 2008 NY Slip Op 50641(U) [19 Misc 3d 1111(A)] Decided on March 31, 2008 Supreme Court, Kings County Miller, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 31, 2008
Supreme Court, Kings County

Antonina Yavkina and Migir Mardukhayev, Plaintiff

against

The New York City Police Department and Michael J. Santore, Defendants.



39099/99



The plaintiff is represented by Ofshtein & Ross P.C. by, Stuart K.Gechlic, of counsel, defendant Federal Express is represented by Lester, Schwab, Katz & Dwyer, LLP by John DeMatteo III., of counsel, defendant. The City of New York is represented by Michael A. Cardozo, Corporation Counsel of The City of New York by Gerard J. Marino, Esq.,of counsel.

Robert J. Miller, J.

On September 30, 1998, then 71-year-old plaintiff Antonina Yavkina ("Yavkina"), a pedestrian, was struck by a New York City Police Department van while crossing in front of a double-parked Federal Express vehicle on Avenue R in Brooklyn sustaining serious personal injury. Plaintiff commenced this action against the New York City Police Department("The City") and the van driver, Police Officer Michael Santore ("Santore"). The City commenced a third-party proceeding against Federal Express Corporation (" Federal Express"), one of whose trucks was double-parked in immediate proximity to the accident. It is alleged that the truck obstructed Officer Santore's view and thereby contributed to the cause of the accident.

Now after the close of discovery, Federal Express moves for summary judgment on the grounds that third-party plaintiff cannot establish either that the Federal Express truck was in fact double-parked or alternatively even if established that the truck was doubled- parked, the company cannot be found negligent as New York State Vehicle and Traffic Law explicitly permitted its vehicle to double park. Plaintiff and the City oppose on the grounds that post-accident photographs show the Federal Express vehicle double-parked and that Federal Express [*2]has not established an entitlement to summary judgment.

The proponent of a motion for summary judgment carries the initial burden of production of evidence as well as the burden of persuasion. The moving party must tender sufficient evidence to show the absence of any material issue of fact and the right to judgment as a matter of law. ( Zuckerman v City of New York, 49 NY2nd 557 [1990].)

Notably, no party with first-hand knowledge of the events underlying this accident has either testified in this action or offered affidavit on this motion. Plaintiff and the defendant Police Officer Santore both purportedly for health reasons, have neither testified nor offered affidavits in opposition to this motion. The defendant Federal Express's truck driver has submitted an affidavit disclaiming any specific recollection of the accident. The historical account of the facts underlying this occurrence are supplied by the photographs and police report, both of which were authenticated at deposition.

The question presented by this motion is whether Federal Express has established an entitlement to the statutory exception to the New York City regulation against double parking. The significance of the statute's application is that if the exception is not applicable, the Federal Express vehicle will have parked in contravention of statute and regulation, the violation of which constitutes some evidence of negligence. (Elliot v. City of New York , 95 NY2nd 730 [2001] , Hill v. Cartier, 258 AD 2nd 699

[2nd Dept1999], Livichuca v. M & T Mortgage Co., 2008 NY slip. op 02799)The Court finds that Federal Express has not established, an entitlement to the exception to the prohibition against double parking.

Pursuant to Vehicle and Traffic Law §1642, New York State Vehicle and Traffic Law

§§1200, 1202 governing parking and double parking are superseded by Title 34 of the Rules of the City of New York, §4-08. Which provides:

§ 4-08. Parking, Stopping, Standing. (a) General provisions. (1) Compliance with rules. No person shall stop, stand or park a vehicle, whether attended or unattended, other than in accordance with authorized signs, pavement markings, or other traffic control devices, unless necessary to avoid conflict with other traffic or in compliance with law or direction of any law enforcement officer or other person authorized to enforce these rules.

(4) Parking prohibited. When parking is prohibited by signs or rules, no person shall stop a vehicle, attended or unattended, except temporarily for the purpose of and while expeditiously receiving or discharging passengers or loading of unloading property to or from the curb. (Emphasis added)

§ 4-08 (f) (1) is also applicable ;

f) General no standing zones (standing and parking prohibited in specified places). No person shall stand or park a vehicle in any of the following places, unless otherwise indicated by posted signs, markings or other traffic control devices, or at the direction of a law enforcement officer: (1) Double parking. On the roadway side of a vehicle stopped, standing, or parked at the curb, except a person may stand a commercial vehicle alongside a vehicle parked at the curb at such locations and during such hours that stopping, standing, or parking is not prohibited, [*3]while expeditiously making pickups, deliveries or service calls, provided that there is no unoccupied parking space or designated loading zone on either side of the street within 100 feet that can be used for such standing, and provided further that such standing is in compliance with the provisions of § 1102 of the State Vehicle and Traffic Law. A person may stand a commercial vehicle along the roadway side of a bicycle lane provided all other conditions of this paragraph are met. (Emphasis added)

Thus the statute prohibits double parking but creates an exception to such prohibition for commercial vehicles while expeditiously making pick-ups, deliveries or services calls provided there is no unoccupied parking space or designated loading zone on either side of the street within 100 feet that can be used for such standing.

As the party asserting the application of the exception, Federal Express has the burden of establishing an entitlement to such exception i.e. it must establish that it's driver was doubled parked while "expeditiously making pickups and deliveries". The photographs submitted to the Court demonstrate what appears to be a double parked Federal Express truck, however, there is no evidence presented to establish that the Federal Express vehicle was double parked for the purpose of pickups or deliveries or that such work was being expeditiously performed. There is also no evidence presented by Federal Express of the unavailability of parking spaces or loading zones within 100 feet, both of which are conditions to the applicability of the exception. Rather, the driver of the Federal Express vehicle at his deposition on May 11, 2007 could only testify to his custom and practice which is insufficient to establish entitlement to judgment as a matter of law;

Q: Do you remember being at or near the intersection of Avenue Rand East 15th Street in Brooklyn on September 30, 1998.

A: Do I recall it? No.

Q: Did any of the documents that you looked at this morning refreshyour recollection as to being at or near that intersection.

A: It brought recollection as far as the area, but as far as that day, no.

Q: Do you recall if in September of 1998 you had any regular deliveries

made to any other establishment at or near Avenue R and East 15th Street?

A: No.

Q: I'll show you what has been marked Defendant's Exhibit A. If you would

please take a minute to read it over.

A. Okay.

Q. Does reading over that document refresh your recollection as to having been atthat intersection on September 30, 1998?

A. No.

Q. So are you saying that your first knowledge of this accident cameapproximately six months ago?

A. That is correct.

Federal Express argues that the case Reid v. Lichinchi, 215 AD 639 [2nd Dept 1995] is controlling and compels entry of summary judgment on their behalf. In Reid , the Appellate [*4]Division upheld the setting aside of a jury verdict against UPS which was based on a claim that it's truck was illegally parked Reid, is distinguishable in that there was eye witness testimony that the UPS driver was delivering packages when the accident occurred. The motion papers herein are devoid of any such testimony. To the contrary, the driver of the Federal Express truck did not recall the day of the accident.

Moreover, the credibility of the Federal Express driver's testimony at the deposition is called into question as his testimony contradicts a statement given by him and reflected in the September 30, 1998 police report:

I seen the lady crossing the street i-f-o the truck and between two parked cars when the police vehicle struck her in the roadway.

The evidence submitted on this motion establishes that the Federal Express vehicle was double parked. The photographs also establish that any vehicle passing the Federal Express vehicle would be compelled to travel in a portion of the lane of oncoming traffic. To pass the Federal Express truck, a vehicle would be required to leave little room between itself and the Federal Express truck to avoid oncoming traffic.

While a violation of New York City traffic regulations constitutes some evidence of negligence, Elliot v. City of New York , 95 NY2nd 730 [2001] , Hill v. Cartier, 258 AD 2nd 699 [1999], Livichuca v. M & T Mortgage Co., 2008 NY slip. op 02799, most negligence is found in the absence of statutory violation. While a statute can authorize double parking, it cannot authorize the or excuse a creation of a dangerous condition of negligence. The question of negligence must be assessed in the context of what is reasonable under all of the prevailing facts and circumstances.

While double parking on wide streets would permit a passing vehicle to provide a margin for safe viewing and for pedestrian error, a narrow street does not. In this case, the question of the relative culpability of Federal Express, the City of New York and the plaintiff herself, all of whom appear to have had a role in the cause of this occurrence, must await resolution by a finder of fact.

Accordingly, the motion for summary judgment of defendant Federal Express Corporation is denied.

The foregoing constitutes the decision and order of the Court.

_______________________

Robert J. Miller

J.S.C.

March 31, 2008

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