Franco v Palmer

[*1] Franco v Palmer 2014 NY Slip Op 51693(U) Decided on December 1, 2014 Supreme Court, Queens County McDonald, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 1, 2014
Supreme Court, Queens County

Carmen Franco and KENNETH CINO, Plaintiffs,

against

Kurt Palmer, Jr., EAN HOLDINGS, LLC, ENTERPRISE HOLDINGS, INC., d/b/a ENTERPRISE RENT-A-CAR and ELRAC, LLC, Defendants.



704557/2013
Robert J. McDonald, J.

The following papers numbered 1 to 13 were read on this motion by plaintiffs, CARMEN FRANCO and KENNETH CINO, for an order pursuant to CPLR 3212(b) granting partial summary judgment in favor of plaintiffs on the issue of liability and setting the matter down for a trial on serious injury and damages only:

PapersNumbered

Notice of Motion-Affidavits-Exhibits.....................1 - 6

Defendant's Affirmation in Opposition....................7 - 10

Reply Affirmation.......................................11 - 13

In this negligence action, the plaintiff, Carmen Franco, seeks to recover damages for personal injuries she allegedly sustained as a result of motor vehicle accident that occurred on October 11, 2013, at the intersection of Astoria Boulevard and 85th Street, East Elmhurst, New York, between her vehicle and the vehicle operated by Kurt Palmer Jr. and owned by defendants Ean Holdings LLC, Enterprise Holdings Inc. d/b/a Enterprise Rent-A-Car and Elrac LLC. Plaintiff contends that she was proceeding on [*2]85th Street through the intersection with the green traffic signal in her favor when her vehicle was struck broadside by the defendants' vehicle which allegedly proceeded into the intersection from Astoria Boulevard in disregard of a red traffic signal.

The plaintiffs commenced this action by filing a summons and complaint on October 18, 2013. Defendants joined issue by serving a verified answer dated November 25, 2013. By stipulation dated September 8, 2014, the plaintiffs' action against Enterprise Holdings, Inc. was discontinued with prejudice. Plaintiffs now move, prior to depositions, for an order pursuant to CPLR 3212(b), granting partial summary judgment on the issue of liability and setting this matter down for a trial on damages only.

In support of the motion, the plaintiffs submit an affirmation from counsel, Raymond Ardito, Esq; a copy of the pleadings; plaintiff's verified bill of particulars; plaintiffs' responses to defendants combined demands; a certified police accident report; an affidavit of Carmen Franco; and affidavit of Daljeet Singh; the affidavit of Grahme Fischer, a motor vehicle accident reconstructionist; and a surveillance video of the accident taken from a surveillance camera at Galaxy Station and Minmart.

The certified police accident report, which is based upon statements made by the respective drivers, states with regard to the accident description:

"At t/p/o Veh. 1 (plaintiff) was heading northbound on 85th Street through intersection with green light when Veh. No.2 (defendant), who was traveling westbound on Astoria Boulevard, proceeded through the intersection without slowing or stopping against red light causing cars to collide in intersection. Gas station at location has video footage of collision. Veh. #2 driver (defendant), states that light was turning yellow. Both parties removed to hospital."

Plaintiff, Carmen Franco, age 58, submits an affidavit of merit dated June 9, 2014, in which she states that on October 11, 2013, at approximately 11:30 a.m, she was operating a white 2013 Honda motor vehicle northbound on 85th Street. She was on the South side of Astoria Boulevard when she reached the intersection. Defendants' vehicle was traveling westbound on Astoria Boulevard. The intersection of 85th Street and Astoria Boulevard was controlled by a traffic signal. She states that she [*3]entered the intersection with the green light in her favor. She states that she had a steady green light in her favor before and after entering the intersection. As her vehicle was in the middle of the intersection, her vehicle was struck broadside on the passenger side by the vehicle being operated by the defendant, Kurt Palmer Jr., age 21. At the time of the accident, Kurt Palmer was driving a vehicle owned by Ean Holdings LLC. Plaintiff states that the accident occurred because Kurt Palmer did not stop at the red traffic signal facing his vehicle. Plaintiff states that the video surveillance recording of the accident, which she reviewed, is a fair and accurate depiction of the events of her accident and fairly depicts the intersection of 85th Avenue and Astoria Boulevard on October 11, 2013. The plaintiff states that as a result of the accident she sustained serious physical injuries including nasal fractures, a hard palate fracture requiring splint placement, bilateral orbital fractures, a left distal fibula fracture, a right knee tear requiring surgery, a left shoulder tear requiring surgery, a right shoulder tear, loss of teeth requiring extensive dental work, neck and back injuries and facial scarring.

Daljeet Singh submits an affidavit dated March 17, 2014 in which he states that he is the manager of Galaxy Station and Minimart located at the intersection of Astoria Boulevard and 85th Street East Elmhurst, New York. He states that on the date of the accident, October 11, 2013, the video surveillance cameras from Galaxy Station were fully functioning and operational. He states that the video surveillance cameras captured a motor vehicle accident which occurred at the intersection of 85th Street and Astoria Boulevard. He states that he reviewed the 18 second video entitled "Franco Accident Video" submitted with the motion and the video is a true and accurate copy and depiction of the images captured on the surveillance video taken from Galaxy Station on the date in question. He states that on October 11, 2013, it was the regular practice of Galaxy Station to make video surveillance recordings, and the images contained on the video surveillance recordings accurately depict the events he personally observed. He states that since the date of the accident the original video surveillance has been in his possession and the 18 second video entitled "Franco Accident Video" that he reviewed was made during the regular course of business of Galaxy Station and Minimart and fairly and accurately copies the depiction of the images on the video surveillance cameras.

The video surveillance submitted to the Court is an 18 second video recorded from the surveillance video of the accident. As the video begins, the traffic signal is red for [*4]vehicles on 85th Street and green for vehicles traveling on Astoria Boulevard. As the video proceeds, the light changes and the cars on Astoria Boulevard can be seen stopping for a red traffic signal in their direction. The light is now green for vehicles proceeding on 85th Street. The video shows the plaintiff's vehicle proceeding northbound on 85th Street with the green light in her favor. Her vehicle enters the intersection and after a few seconds the defendants' vehicle can be seen proceeding Westbound on Astoria Boulevard entering the intersection without slowing down and striking the driver's side of the plaintiff's vehicle. The video shows the defendants' vehicle entering the intersection without slowing down and striking the plaintiff's vehicle with a heavy impact.

Plaintiff submits an affidavit from Grahme Fischer, a licensed professional engineer and accident reconstructionist who viewed the 18 second video digital video file of the accident and also made a physical inspection of the accident site. It is his opinion, based upon his viewing of the surveillance video, his calculations, and the reasons set forth in his report, that the defendant was traveling at a rate of 45 miles per hour or more. He asserts that the defendant ran through a red light at least 13 - 20 seconds after it had turned red. He states that in his opinion the defendant's reckless driving caused the accident and his high rate of speed produced a severe response to the plaintiff's vehicle.

Plaintiff's counsel contends that the evidence submitted in support of his motion demonstrates that the accident was caused solely by the negligence of the defendant who failed to obey the red traffic signal at Astoria Boulevard and proceeded directly into the intersection striking the plaintiff's vehicle at a high rate of speed. Counsel contends, therefore, that the plaintiff is entitled to partial summary judgment as to liability because the defendant's negligence in disregarding the red traffic signal in violation of VTL §§ 1110 and 1111 and exceeding the speed limit in violation of VTL § 1180 was the sole proximate cause of the accident and that the plaintiff, who had no opportunity to avoid the accident, was free from culpable conduct (citing Pitt v Alpert, 51 AD3d 650 [2d Dept. 2008]; Ramos v Triboro Coach Corp., 31 AD3d 625 [2d Dept. 2006]; Iqbal v Petrov, 9 AD3d 4[2d Dept. 2004]). Counsel claims that although the defendant told the police at the scene that the light was yellow in his direction, his statement was false and self-serving and contradicted by the video footage and expert analysis.

In opposition to the motion, defendant's counsel, Peter M. Khrinenko, Esq. claims that there is a question of fact as [*5]plaintiff claims she had a green light as she entered the intersection whereas the defendant insists that the light changed from green to yellow in his direction as he entered the intersection. Counsel asserts that under the circumstances it should be for a jury to determine questions of credibility.

In this regard, counsel submits an affidavit from the defendant, Kurt Palmer, Jr., in which he states that he is an employee of Elrac LLC. He states that prior to the accident he was traveling westbound on Astoria Boulevard. As he approached the intersection with 85th Street, the traffic light was green in his direction. He states that the traffic light remained steady green until he was within a few feet of the intersection about to enter it. As he was 2 - 4 feet from the intersection the light turned from green to yellow. He states that he was traveling at 30 miles per hour and rather than make a short stop he decided to proceed forward through the yellow light. He states that the traffic light remained yellow until the collision which occurred a second or two after he entered the intersection giving him no time to try to avoid the accident with the plaintiff's vehicle. He states that the traffic light was not red in his direction when he entered the intersection, or at the time of the collision with the plaintiff's vehicle.

Defendant also claims that the police report is inadmissible as it is based only upon the hearsay statements of the drivers. He also claims that the surveillance video is inadmissible for purposes of the summary judgment motion as the plaintiff has failed to lay a proper foundation. He also asserts that the opinion of the plaintiff's engineer is speculative. Counsel asserts that there has been no proof offered that the tapes are genuine and have not been altered, that there is no testimony regarding chain of custody, and that the video submitted to the court is not sufficiently authenticated. In addition defendant argues that recordings from all of the surveillance cameras were not provided and as such it is asserted the plaintiff failed to establish the accuracy and completeness of the purported video, freedom from tampering or that the video was not re-recorded or altered in any way. Counsel also claims that the video in inconclusive and does not resolve the factual issue, to wit, the color of the traffic light facing the defendant. In addition, the defendant asserts that the video does not establish the plaintiff's freedom from contributory negligence. Counsel also asserts that the plaintiffs have not produced the videos from all of the surveillance cameras but rather only produced 18 seconds captured from 2 of the 5 surveillance cameras.

In reply, the plaintiff submits a further affidavit from [*6]Daljeet Singh stating that only surveillance video cameras 3 and 5 were directed at the accident location while cameras 1, 2 and 4 were not directed at the location where the accident occurred. and could not have captured the collision of October 11, 2013.

The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form in support of his position (see Zuckerman v. City of New York, 49 NY2d 557[1980]).

This Court finds that the plaintiff established that the defendant's negligence was the sole proximate cause of the subject accident. The evidence submitted, including the deposition testimony of the plaintiff and the video surveillance video demonstrates that the defendant violated Vehicle and Traffic Law § 1111 when his vehicle failed to stop at a red traffic light and proceeded into the intersection and directly into the plaintiff's vehicle (see Farris v Reyes, 119 AD3d 734 [2d Dept. 2014]; Monteleone v Jung Pyo Hong, 79 AD3d 988 [2d Dept. 2010]; Pitt v Alpert, 51 AD3d 650 [2d Dept. 2008]; Ramos v Triboro Coach Corp., 31 AD3d 625 [2d Dept. 2006]; Iqbal v Petrov, 9 AD3d 4[2d Dept. 2004]).

In opposition to plaintiff's prima facie showing, the defendants failed to raise any material questions of fact as to the causation of the accident and whether plaintiff was comparatively negligent (see Zuckerman v City of New York, 49 NY2d 557 [1980]; Moreno v Gomez, 58 AD3d 611 [2d Dept. 2009]; Pitt v Alpert, 51 AD3d 650 [2d Dept. 2008]; Gorelik v Laidlaw Tr. Inc., 50 AD3d 739 [2d Dept. 2008]; Moreback v Mesquita, 17 AD3d 420 [2d Dept. 2005]). The plaintiff as the driver with the right-of-way was entitled to anticipate that the defendant would obey traffic laws which require him to stop at the red traffic signal (see Figueroa v Diaz, 107 AD3d 754 [2d Dept. 2013]; Williams v Hayes, 103 AD3d 713 [2d Dept. 2013]). Further, a driver with the right-of-way who has only seconds to react to a vehicle which has failed to yield is not comparatively at fault for failing to avoid the collision (see Barbato v Maloney, 94 AD3d 1028 [2d Dept. 2012]).

Although the defendant claims that the traffic signal was yellow when he entered the intersection, this Court finds that such testimony is belied by the video surveillance tape showing that the defendant ran the red light without slowing down several seconds after it turned red. Although the courts may not weigh [*7]the credibility of witnesses on a motion for summary judgment, it has been held that the court may disregard testimony where it clearly appears that the issues raised are not genuine, but feigned (see Conciatori v. Port Auth. of NY & N. J., 46 AD3d 501 [2d Dept. 2007] quoting Glick & Dolleck v Tri-Pac Export Corp., 22 NY2d 439 [1968]). Here, based upon the review of the video, the affidavit of witness Galjeet Singh and the report of the plaintiff's expert accident reconstructionist, this court finds that the testimony of the defendant was an attempt to raise a feigned question of fact. Based upon a review of the surveillance video, the defendant's assertion that the light was yellow when he entered the intersection lacks an evidentiary basis (see Moreira v M.K. Travel & Transp., Inc., 106 AD3d 965 [2d Dept. 2013]).

In addition, this court finds that the testimony of Daljeet Singh, who was present at the time of the accident and who reviewed the surveillance video, and who has maintained possession of the surveillance video is sufficient to authenticate the surveillance video and to establish that a video recording submitted with the motion is a true, fair, and accurate representation of the events depicted, and is sufficient to establish chain of custody (see Read v Ellenville Nat'l Bank, 20 AD3d 408 [2d Dept. 2005][a videotape may be authenticated by the testimony of a witness to the recorded events or of an operator or installer or maintainer of the equipment that the videotape accurately represents the subject matter depicted]).

Therefore, the plaintiff satisfied her prima facie burden of establishing her freedom from comparative negligence and her entitlement to partial summary judgment as a matter of law on the issue of liability (see Volpe v Limoncelli,74 AD3d 795 [2d Dept. 2010]; Vavoulis v Adler, 43 AD3d 1154 [2d Dept. 2007]; Levine v Taylor, 268 AD2d 566 [2000]).

Accordingly, for the reasons stated above, it is hereby,

ORDERED, that the plaintiff's motion is granted, and the plaintiffs, CARMEN FRANCO and KENNETH CINO, shall have partial summary judgment on the issue of liability against the defendants, KURT PALMER, JR., EAN HOLDINGS, LLC, and the Clerk of Court is authorized to enter judgment accordingly; and it is further,

ORDERED, that upon the completion of discovery, the filing of a Note of Issue, and compliance with all the rules of the Court, this action shall be placed on the calendar of the Court for a trial on the issue of serious injury and damages.

Dated: December 1, 2014

Long Island City, NY

_________________

ROBERT J. MCDONALDJ.S.C.