Grunberger v S & Z Serv. Sta. Inc.

[*1] Grunberger v S & Z Serv. Sta. Inc. 2010 NY Slip Op 51163(U) [28 Misc 3d 1206(A)] Decided on July 1, 2010 Supreme Court, Kings County Rivera, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through July 9, 2010; it will not be published in the printed Official Reports.

Decided on July 1, 2010
Supreme Court, Kings County

Alex Grunberger, Plaintiff,

against

S & Z Service Station Inc., Defendant.



18096/08



Debra Hirsch, Esq.

Attorney for Plaintiff

30 Washington Avenue

Cedarhurst, New York 11516

(516) 295-7855

Law Offices of James R. Pieret & Associates

By Patrick B. McKeown, Esq.

Attorneys for Defendant

S & Z Service Station Inc.

400 Garden City Plaza

Garden City, New York 11530

(516) 512-6590

Francois A. Rivera, J.

By notice of motion filed on August 10, 2009, under motion sequence number one, defendant S & Z Service Station Inc. moves pursuant to CPLR § 3212 for an order granting it summary judgment in its favor finding no liability to the plaintiff Alex Grunberger.

BACKGROUND

On June 24, 2008, plaintiff Alex Grunberger commenced this action by filing a summons and verified complaint with the Kings County Clerk's office. Defendant S & Z Service Station joined issue by its verified answer dated August 5, 2008.

The verified complaint contains ten allegations of fact in support of a single cause of action for damages for personal injuries allegedly incurred by plaintiff in an automobile accident as a consequence of defendant's negligence. The sum and substance of plaintiff's claim is that defendant negligently inspected or repaired plaintiff's vehicle, released the vehicle to plaintiff with defective brakes, and that as a result plaintiff crashed his car and suffered injuries to his person.

MOTION PAPERS

Defendant's motion papers consist of a memorandum of law, an affirmation of its [*2]counsel and nine annexed exhibits labeled A through I. Exhibit A is a printout from the website of the New York State Unified Court System. Exhibit B is a copy of plaintiff's verified bill of particulars. Exhibit C is a copy of the instant summons and verified complaint. Exhibit D is a copy of the verified answer. Exhibit E is a copy of the transcript of plaintiff's deposition testimony taken on February 9, 2009. Exhibit F is a copy of the transcript of Peter Kulsum, a former employee of defendant S & Z Service Station Exhibit G is a copy of plaintiff's response to defendant's combined discovery demands. Exhibit H contains copies of reports of medical examinations of plaintiff procured by plaintiff. Exhibit I contains a copy of a report of a medical examination of plaintiff procured by defendant.

Plaintiff submits his affidavit with several annexed and unlabeled exhibits as well as his supplemental affidavit. The annexed exhibits include plaintiff's unaffirmed medical records, affirmation from his doctors and a copy of the receipt for payment for the defendant's inspection of plaintiff's car.

With leave of the court defendant submitted a superseding reply affirmation. Only the superseding reply affirmation is considered here.

LAW AND APPLICATION

A motion for summary judgment may be granted only when there is no doubt as to the absence of any triable issue of material fact (Kolivas v. Kirchoff, 14 AD3d 493 [2nd Dept. 2005]). "Issue finding, rather than issue determination is the court's function. If there is any doubt about the existence of a triable issue of fact, or a material issue of fact is arguable, summary judgment should be denied" (Celardo v. Bell, 222 AD2d 547 [2nd Dept. 1995]). A party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact (Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]; Napolitano v. Suffolk County Dept. Of Public Works, 65 AD3d 676 [2nd Dept 2009]). Once the movant has met this burden, the burden then shifts to the party opposing the motion to demonstrate via admissible evidence the existence of a factual issue requiring a trial of the action (Alvarez v. Prospect Hosp., supra; Zuckerman v. City of New York 49 NY2d 557, 560 [1980]). "As a general rule, a party does not carry its burden in moving for summary judgment by pointing to gaps in its opponent's proof, but must affirmatively demonstrate the merits of its claim or defense" (See, Mennerich v. Esposito, 4 AD3d 399 [2nd Dept. 2004]).

In addition, the elements of a negligence claim are the existence of a duty, a breach of that duty, and damages proximately caused by that breach of duty (See, Lapides v. State, 57 AD3d 83 [2nd Dept. 2008]).

Defendant seeks summary judgment on three separate bases. First, that plaintiff's injuries do not meet the serious injury threshold as prescribed by Insurance Law § 5102 (d). Second, that they are not liable to plaintiff for failure to diagnose a problem with plaintiff's brakes. And finally, that plaintiff's spoliation of evidence warrants dismissal. [*3]

In a memorandum of law submitted by defendant to the court subsequent to the filing of its notice of motion, defendant withdrew the first basis of its summary judgment motion, having acknowledged that the serious injury requirement for recovering damages for non-economic loss is not applicable in the instant case.

In support of the second basis of its motion for summary judgment, defendant submits a transcript of the deposition testimony of plaintiff as well as a transcript of the deposition testimony of non-party Peter Kulsum. Mr. Kulsum worked at the defendant service station at the time defendant serviced or inspected plaintiff's vehicle.

Plaintiff testified at his deposition that on August 9, 2006, he was driving on the FDR drive near the U.N. building (deposition transcript, pp. 10-12). Traffic was heavy and moving slowly at the time of the accident (p. 10). Suddenly, plaintiff's brakes failed (p. 11). The make of plaintiff's vehicle was Lincoln and the year of it was 2003 (p. 9). Plaintiff was driving at about 40-45 miles per hour just prior to the accident (p. 11). According to plaintiff, as a consequence of the sudden failure of his brakes, he crashed (p. 14). This accident occurred at around noon (p. 16). Plaintiff testified he had started driving that morning at around 10:00 a.m and that he had occasion to apply the brakes on his car prior to the accident over a highway(pp. 16-17). He had driven from Brooklyn to Manhattan that morning through the tunnel. Plaintiff testified that the brakes were squeaking prior to the accident and that he had stopped his vehicle and checked out why they were squeaking (pp. 18-19). He did not experience any problem in bringing the car to a complete stop at any time before he was near the U.N. building (p. 19). Two days prior to the accident plaintiff dropped his car at defendant service station for its annual inspection (p. 51). He left his vehicle there for two days (p. 54). Plaintiff was able to drive his car when he picked it up from the service station (p. 55). He did not experience any problems with its brakes at that time (p. 56). Between the time plaintiff left the service station and the time he had the accident, plaintiff had no problems with the car (p. 56).

Non-Party Peter Kulsum testified at his deposition that he worked as a service manager for defendant S & Z Service Station on August 8, 2006. Mr. Kulsum also identified a $37 receipt dated August 8, 2006 with plaintiff's name on it (p. 9). However, Mr. Kulsum stated that he did not remember servicing plaintiff's vehicle (p. 8). In response to being asked whether he has recollection of doing some inspection on Mr. Alex Grunberger's vehicle on August 8, 2006, Mr. Kulsum answered no (p. 11).

Mr. Kulsum's deposition testimony unequivocally demonstrates that he lacks personal knowledge of circumstances or events material to the accident which is the subject of this litigation. Thus his deposition testimony is of no probative value and the court disregards it.

The court takes judicial notice of the contents of the New York State Department of Motor Vehicles Motor Vehicle Inspection Regulations which are available for viewing on the website of the New York State Department of Motor Vehicles. These regulations were made effective May 4, 2005, approximately fifteen months prior to the subject [*4]accident. § 79.21 Of the Motor Vehicle Inspection Regulations sets forth guidelines for the inspection of the kind of vehicle which plaintiff alleges crashed as a consequence of the failure of its brakes. Paragraph (a) of § 79.21 states as follows: "Service Brake System. Every vehicle must be tested for brake equalization after a complete inspection has been performed. Such test must be on a dry, hard, level surface, free from loose material (indoors or outdoors) or with approved brake testing equipment set to approved specifications. At least one front axle wheel must be removed for brake inspection. (Identify location of wheel removed on VS-1074 if you use this form). However, an inspector may remove as many wheels as necessary to determine the condition of the braking system. A brake tester that has been approved by the commissioner may be used to test the vehicle's braking system in lieu of performing a brake equalization test and the requirement that a wheel be removed."

Defendant may not prevail on its motion for summary judgment on the ground that plaintiff, in his deposition testimony, fails to identify what exactly caused the failure to his brakes. This constitutes a highlighting of a gap in plaintiff's proof. Defendant does not carry its burden in this fashion on its motion for summary judgment (See, Mennerich v. Esposito, 4 AD3d 399 [2nd Dept. 2004]). Defendant might have succeeded in meeting its prima facie by coming forth with evidentiary proof in admissible form, such as sworn testimony of an employee with personal knowledge of the repair or inspection done on plaintiff's vehicle, which indicated that defendant was not responsible for damaging the brakes on plaintiff's vehicle and not responsible for failing to identify a problem with the brakes. Defendant did not come forth with any such evidentiary proof in admissible form. As noted above, the testimony of defendant's former employee is of no probative value as he unequivocally states that he does not remember servicing plaintiff's vehicle.

Defendant has failed to make a prima facie showing that it did not cause a dangerous or defective condition in plaintiff's vehicle which led to the accident.

The court notes that although defendant relies heavily on the reasoning of the Court of Appeals in Stiver v. Good & Fair Carting & Moving, Inc., 9 NY3d. 253 [2007], the holding in that case is inapposite to the facts of the instant case. In Stiver, the Court of Appeals was presented with a plaintiff who had been involved in an automobile accident. The Stiver plaintiff commenced an action against Stephen Corbett, the owner and driver of another automobile which had been involved in the accident. The Stiver plaintiff subsequently learned that Mr. Corbett's vehicle had been inspected by Good & Fair Carting & Moving approximately two months prior to the accident. With this knowledge, the Stiver plaintiff commenced an action against Good & Fair Carting & Moving. In Stiver, the court of appeals stated that a contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party - that third party being the Stiver plaintiff and the contractual obligation being the one between Mr. Corbett and Good & Fair Carting & Moving. The facts considered by the Court of Appeals in Stiver are thus fundamentally different from the facts presented before this court on the instant [*5]summary judgment motion. Plaintiff Grunberger is not a third party relying on a contractual obligation to give rise to tort liability in his favor against defendant S & Z Service Station. Rather, he is making a straight forward claim of negligence against S & Z Service Station.

While the Court of Appeals in Stiver stated that as a matter of public policy, it is "unwilling to force inspection stations to insure against risks the amount of which they may not know and cannot control, and as to which contractual limitations of liability might be ineffective. If New York State motor vehicle inspection stations become subject to liability for failure to detect safety-related problems in inspected cars, they would be turned into insurers. This transformation would increase their liability insurance premiums, and the modest cost of a State-mandated safety and emission inspection would inevitably increase", there can be no dispute that the Court of Appeals made this statement in the context of the facts presented in Stiver. And while it makes sense to state that an inspection station ought not to be forced into the role of an insurer in the context of the inspection station being a party to an inspection contract with the owner of one motor vehicle and getting sued by the owner of a different motor vehicle who was involved in an accident with an allegedly negligently inspected vehicle, it does not make any sense to state that inspection stations per se ought not to be held liable for their negligent inspections or repairs by the owners of vehicles which they may have negligently inspected.

The court now turns to the defendant's third and final basis for seeking an order which dismisses the complaint. Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, thereby depriving the non-responsible party of the ability to prove its claim or defense, the responsible party may be sanctioned by the striking of its pleading (Gotto v. Eusebe-Carter, 69 AD3d 566 [2nd Dept. 2010]). However, a less severe sanction is appropriate where the absence of the missing evidence does not deprive the moving party of the ability to establish his or her case (See, Gotto v. Eusebe-Carter, 69 AD3d 566 [2nd Dept. 2010] citing Gerber v. Rosenfeld, 18 AD3d 812 [2nd Dept. 2005]). The determination of a sanction for spoiliation is within the broad discretion of the court (Gotto v. Eusebe-Carter, 69 AD3d 566 [2nd Dept. 2010] citing Dennis v. City of New York, 18 AD3d 599 [2nd Dept. 2005]). Here, the sanction of dismissal based on spoliation is not warranted. It is undisputed that plaintiff's car was involved in an accident. According to defendant's attorney's affirmation, plaintiff's car was towed from the scene by the police and subsequently "totaled out" by plaintiff's insurance company. Moreover, that plaintiff's car might be unavailable for inspection at this time does not deprive defendant of the opportunity to establish its case. Defendant is perfectly capable of producing any records which it might have kept of the inspection it performed on plaintiff's car as well as any mechanic who may have been in its employ and have personal knowledge of the inspection of plaintiff's vehicle.

The court's disposition on the spoliation prong of defendant's motion is without [*6]prejudice and does not foreclose against defendant the possibility of making a subsequent motion for a lesser sanction against defendant such as an adverse inference charge.

Defendant's motion is denied in its entirety.

The foregoing constitutes the decision and order of the court.

Enter 1;x

J.S.C.

Enter forthwith x

J.S.C.