Flores v Neuman

[*1] Flores v Neuman 2010 NY Slip Op 51365(U) [28 Misc 3d 1216(A)] Decided on July 29, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 29, 2010
Supreme Court, Kings County

Daisy E. Flores, Plaintiff,

against

Issack Neuman and "JOHN DOE," the latter name being fictitious and intended to represent an unidentified driver, Defendants.



26466/08



The plaintiff is represented by Everett J. Peterson, P.C., by Michael A. Serpico, Esq., of counsel the defendants are represented by Martin, Fallon & Mullé by Michael P. Ross, Esq., of counsel.

Robert J. Miller, J.

In this action, the plaintiff Daisy Flores (Flores) parked her motor vehicle on the side of a road when it was struck, while she was still inside, by another motor vehicle driven by defendant

John Doe (Doe) and owned by defendant Issack Neuman (Neuman). Neuman claims to have been traveling internationally at the time of the accident and alleges that he left his car locked and parked on a public street. Neuman's car was allegedly stolen by Doe, who was operating the

vehicle when it struck the plaintiff's car. Plaintiff moves for partial summary judgment on the issue of liability, or, in the alternative, an order dismissing the affirmative defense of non-permissive use pursuant to Vehicle and Traffic Law § 388(1). Plaintiff also moves for partial summary judgment on the issue of serious injury within the meaning of Insurance Law § 5102(d) under the "loss of fetus" category. Additionally, plaintiff moves to either strike defendant's answer or to preclude the stolen vehicle report from evidence for failure to disclose the report pursuant to CPLR § 3126(3).

Defendant Neuman cross moves for summary judgment on the issue of liability, asserting that he has introduced substantial evidence to support the affirmative defense of non-permissive use. [*2]

A motion for summary judgment is a drastic measure and is to be used sparingly (Andre v. Pomeroy, 35 NY2d 361 [1974]). Summary judgment is proper when there are no issues of triable fact (Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]). To prevail on a summary judgment motion, the moving party must produce evidentiary proof in admissible form sufficient to warrant the direction of summary judgment in its favor (GTF Mtkg, Inc. v. Colonial Aluminum Sales, Inc., 66 NY2d 965, 967 [1985]). The evidence will be construed in the light most favorable to the one moved against (Weiss v. Garfield, 21 AD2d 156 [3rd Dept 1964]).

Once this burden is met, the burden shifts to the opposing party to submit proof in admissible form sufficient to create a question of fact requiring a trial (Kosson v. Algaze, 84 NY2d 1019 [1995]).

PERMISSIVE USE OF A MOTOR VEHICLE

Vehicle and Traffic Law § 388(1) holds every owner of a vehicle liable for the negligence of any person using or operating the vehicle with the permission, express or implied, of the owner. (McKinney's Vehicle and Traffic Law § 388(1) [2002]). Proof of ownership of a motor vehicle creates the presumption that any driver of a vehicle is using the vehicle with the owner's consent. (Murdza v. Zimmerman, 99 NY2d 375 [2003]). However, this presumption may be rebutted by substantial evidence sufficient to show that a vehicle was operated without the owner's consent. (Murdza v. Zimmerman, 99 NY2d 375 [2003]). Substantial evidence of non-permissive use may include: an affidavit to the owner's insurance company, a report of theft to the police, an accident report, and proof that the driver fled the scene ( McDonald v. Rose, 37 AD3d 781 [2nd Dept. 2007]), as well as an affidavit of the driver (Country Wide Ins. Co. v. National R.R. Passenger Corp., 6 NY3d 172 [2006], Murphy v Carnisi, 30 AD3d 570 [2nd Dept. 2006]). Testimony of the defendant and interested witnesses that the vehicle was driven without the defendant's permission, by itself, is not sufficient to overcome the presumption of consent (Matter of State Farm Mut. Auto. Ins. Co. v. Fernandez, 23 AD3d 480 [2nd Dept. 2005], Winnowski v. Polito, 294 NY 159 [1945]). Additionally, where disavowals of consent are arguably suspect, as where there is evidence suggesting implausibility, collusion or implied permission, the issue of consent should go to a jury (Country Wide Ins. Co. v. National R.R. Passenger Corp., 6 NY3d 172 [2006]).

In the instant case, the Court finds that there remain triable issues of fact regarding consent which prevent summary judgment on liability. Neuman, as the owner of the vehicle, disavows giving consent for anyone, including John Doe, to operate the car. This alone is not enough to rebut the presumption of consent (Matter of State Farm Mut. Auto. Ins. Co. v. Fernandez, 23 AD3d 480 [2nd Dept. 2005], Winnowski v. Polito, 294 NY 159 [1945]), but Neuman has offered other evidence in rebuttal, including a passport page and travel itinerary indicating that he was traveling at the time of the accident, an accident report, and the eventual production of a stolen vehicle report. This type of information has been held sufficient to rebut the presumption of permissive use (McDonald v. Rose, 37 AD3d 781 [2nd Dept. 2007]). Defendant Neuman asserts that the instant case is similar to McDonald, and accordingly the Court should grant summary judgment. However, McDonald is not an entirely analogous case, because in McDonald, it was beyond dispute that the vehicle was actually stolen. In the instant case, several factors raise doubt concerning the issue of consent. First, the defendant Neuman left [*3]his keys in an unlocked magnetic box attached to the underside of his vehicle. Second, the stolen vehicle report does not indicate that any forced entry was used to steal the vehicle. Third, the defendant waited an entire month after he returned to the United States before he reported the theft of the vehicle (in McDonald, the vehicle was reported stolen 11 days before the accident occurred). These differences distinguish the instant case from McDonald, and suggest implied permission and implausibility of Neuman's disavowals of consent (Country Wide Ins. Co. v. National R.R. Passenger Corp., 6 NY3d 172 [2006]), requiring the issue of consent to be

determined by a jury. Furthermore, plaintiff offers additional evidence that raises an issue of fact as to whether Doe, specifically, had permission, either express or implied, to drive Neuman's vehicle. Plaintiff testified in her deposition that after being struck by Neuman's vehicle, Doe, the driver of the car, jumped out and yelled, "Oh s**t, this is my cousin's car, he's going to kill me!" (Exhibit 2). Plaintiff testified that she then heard Doe say that he needed to make a telephone call, after which he went into a nearby store and never returned to the scene (Exhibit 2). The Court finds that this statement made by the driver Doe, as a party to this case, is admissible as evidence under the admission and excited utterance hearsay exceptions. Admissions by a party of any fact material to the issue are always competent evidence against him, wherever, whenever, or to whomsoever made (People v. Chico, 90 NY2d 585 [1997], citing Prince, Richardson on Evidence § 8-201, at 510 [Farrell 11th ed.], Reed v. McCord, 160 NY 330 [1899]). The statement or act done or made by a party must cut against his interest at the time of litigation, even though it may have been in that party's interest when made (Reed v. McCord, 160 NY 330 [1899]; Prince, Richardson on Evidence § 8-201, at 203 [Farrell 11th ed.]). An out-of-court statement is admissible under the excited utterance exception when made under the stress of excitement caused by an external event, and not the product of studied reflection and possible fabrication. (People v. Johnson, 1 NY3d 302 [2003]). "Underlying this exception is the assumption that a person under the influence of the excitement precipitated by an external startling event will lack the reflective capacity essential for fabrication and, accordingly, any utterance he makes will be spontaneous and trustworthy" (People v. Johnson, 1 NY3d 302 [2003], quoting People v Edwards, 47 NY2d 493 [1979]). The excited utterance exception has been held applicable to civil cases as well as criminal cases (Abre v. Sherman, 36 AD3d 725 [2007]; Gagliardi v. Am. Suzuki Motor Corp., 303 AD2d 718 [2003]). The Court finds that the plaintiff's testimony, which suggests that the driver Doe may be Neuman's cousin, casts further doubt on the plausibility of defendant Neuman's disavowal of consent and may suggest permissive use, express or implied. This testimony creates a triable issue of fact concerning consent, which must be decided by the jury.

For the aforementioned reasons, the Court denies the motion and cross-motion for summary judgment on the issue of liability. The Court also denies plaintiff's request for an order dismissing defendant's affirmative defense of non-permissive use pursuant to Vehicle and Traffic Law § 388(1).

MOTION TO STRIKE DEFENDANT'S ANSWER OR PRECLUDE THE STOLEN VEHICLE REPORT

Plaintiff asks this Court to strike defendant's answer for failure to comply with the demands of the plaintiff and two orders of the Court by refusing to exchange the stolen vehicle report pursuant to CPLR § 3126(3). Alternatively, pursuant to CPLR § 3126(2), plaintiff asks the [*4]Court to preclude the defendant from offering the stolen vehicle report at the time of trial or in opposition to plaintiff's motion. CPLR § 3126, states:

"If any party, or a person who at the time a deposition

is taken or an examination or inspection is made is an

officer, director, member, employee or agent of a party or

otherwise under a party's control, refusesto obey an order

for disclosure or willfully fails to disclose information

which the court finds ought to have been disclosed pursuant

to this article, the court may make such orders with regard to

the failure or refusal as are just, among them: 1. an order that

the issues to which the information is relevant shall be deemed

resolved for purposes of the action in accordance with the

claims of the party obtaining the order; or 2. an order prohibiting

the disobedient party from supporting or opposing designated

claims or defenses, from producing in evidence designated things

or items of testimony, or from introducing any evidence of the

physical, mental or blood condition sought to be determined,

or from using certain witnesses; or 3. an order striking out

pleadings or parts thereof, or staying further proceedings until

the order is obeyed, or dismissing the action or any part thereof,

or rendering a judgment by default against the disobedient party."

Striking an answer is a drastic remedy (Rowell v. Joyce, 10 AD3d 601 [2004]). The decision to strike an answer lies within the sound discretion of the trial court; it is not a mandate (see CPLR § 3126; Kihl v. Pfeffer, 94 NY2d 118 [1999], Patterson v. Greater NY Corp. of Seventh Day Adventists, 284 AD2d 382 [2nd Dept. 2001]). Striking an answer may be appropriate where there is a clear showing that the failure to comply with discovery demands is willful and contumacious (McArthur v. New York City Housing Authority, 48 AD3d 431 [2nd Dept. 2008], Rowell v. Joyce, 10 AD3d 601 [2004]). Willful and contumacious conduct can be inferred from a party's repeated failure to respond to demands or comply with court orders (McArthur v. New York City Housing Authority, 48 AD3d 431 [2nd Dept. 2008], Herrera v. City of New York, 238 AD2d 475 [2nd Dept. 1997]). The absence of any explanation for the failure to comply to discovery demands, or the absence of an adequate excuse, can support an inference that the failure to comply was willful (McArthur v. New York City Housing Auth., 48 AD3d 431 [2nd Dept. 2008]; Alto v. Gilman Management Corp., 7 AD3d 650 [2004]).

Although it is in the Court's discretion to strike defendant's answer, this Court declines to take such a drastic measure. Since the time that plaintiff filed her motion, defendant has produced the report (Exhibit A in defendant's reply affirmation). Although defendant delayed production of the stolen vehicle report for approximately one year, the defendant claims that there was difficulty in obtaining the report and he hired a private investigator to procure it from the police. Additionally, the report is accompanied by a letter from the private investigator describing the effort [*5]undertaken to produce the report. Here, there is not an absolutely clear showing of willful and contumacious conduct to warrant striking of the defendant's answer. Although a delay in production can indicate such conduct, defendant has offered a reasonable excuse for the delay.

Alternatively, plaintiff asks the Court to preclude the stolen vehicle report from evidence at trial. However, plaintiff is not disserved by the inclusion of the stolen vehicle report. The Second Department, in Tamborino v. Burakoff, 224 AD2d 609 [2nd Dept. 1996] has held that even where evidence was not produced for approximately two years and then finally produced only three days before trial, the trial court providently exercised its discretion in denying a motion to preclude evidence for failure to comply with discovery demands. Instead, a mere fine was found to be a suitable sanction because the moving party was disserved by the lateness of the production of the evidence requested. In the instant case, unlike Tamborino, the trial is not imminent, so the plaintiff is not similarly disserved by the lateness of the production of this evidence and, therefore, preclusion is not warranted. Furthermore, with or without the report in evidence, there still remain questions of fact concerning permissive use, so the absence or presence of the stolen vehicle report is not dispositive.

Plaintiff's motion to strike the answer, or, in the alternative, to preclude the stolen vehicle report from evidence, is denied.

SERIOUS INJURY: LOSS OF FETUS

Plaintiff's motion for summary judgment on the issue of serious injury under the "loss of fetus" category of Insurance Law § 5102(d) presents a triable issue of fact as to causation of the loss of fetus. (McKinney's Insurance Law § 5102(d) [2006?]). Although infrequent, a plaintiff's motion for summary judgment on the issue of "serious injury" may be granted in a proper circumstance. (Poux v. New York City Transit Authority, 19 Misc 3d 1106(A) [2008]). The plaintiff is required to make a prima facie showing of such injury, and the burden shifts to the defendant to rebut the plaintiff's prima facie case ( GTF Marketing, Inc. V Colonial Aluminum Sales, Inc., 66 NY2d 965 [1985]; Zuckerman v. City of New York, 49 NY2d 557 [1980]).

The Court finds that plaintiff has made a prima facie case for judgment as a matter of law on the issue of serious injury in the "loss of fetus" category of Insurance Law § 5102(d). Plaintiff Flores was taken to the hospital from the accident site via ambulance and complained of, inter alia, abdominal pains. Flores was discharged several hours later but returned to the hospital the next day with complaints of increased abdominal pain. On the following day, December 16, 2007, Flores experienced vaginal bleeding and returned to the hospital via ambulance. Sonograms confirmed Flores's pregnancy, but medical records indicate the diagnosis of "threatened miscarriage" and note that the bleeding may be an early sign of miscarriage. Flores again visited the hospital on December 21, 2007, with complaints of vaginal bleeding and pain, but a fetal heartbeat was confirmed. One month later, on January 22, 2008, Flores was sent from a pregnancy clinic to the hospital because a sonogram did not show a fetal heart. On January 25, 2008, she returned to the hospital with vaginal bleeding and received a diagnosis of "spontaneous abortion." Plaintiff's expert OB/GYN doctor has concluded, within a reasonable degree of medical certainty, that the plaintiff's loss of fetus was directly causally related to her motor vehicle accident on December 14,2007. Defendant's expert, however, has stated that although plaintiff's loss of fetus is likely to be causally related to the accident due to the temporal relationship of the trauma from the accident to the vaginal bleeding, it is his opinion that there is [*6]still a 10 to 15 percent chance that Flores would have miscarried even if she were not involved in the accident. As such, defendant has offered sufficient evidence to rebut plaintiff's prima facie case and there exists a triable issue of fact regarding the causation of loss of fetus under Insurance Law § 5102(d). Plaintiff's motion for summary judgment on the issue of serious injury under Insurance Law § 5102(d) is denied.

Finally, the plaintiff asks this Court to restore her action to active status and to grant an order, pursuant to 22 NYCRR 202.21(d), to extend her time to file her note of issue. Due to the plaintiff's outstanding requests for discovery, including, inter alia, the stolen vehicle report, the plaintiff did not timely file her note of issue. The Court extends the time to file a note of issue to September 30, 2010.

The foregoing constitutes the decision and Order of the Court.

_______________________

Robert J. Miller

J.S.C.

July 29, 2010