Carr v Cali

[*1] Carr v Cali 2017 NY Slip Op 51620(U) Decided on November 20, 2017 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 20, 2017
Supreme Court, Queens County

Conor P. Carr, Plaintiff,

against

Salvatore Cali, APPLE TOWING CO., INC., DARWIN LEE SERVANTES, COOL WIND VENTILATION CORP., LAZAR LAZAROVSKI, and NIKOLA LAZAROVSKI, Defendants.



705483/2013
Robert J. McDonald, J.

The following electronically filed documents read on this motion by defendants DARWIN LEE SERVANTES and COOL WIND VENTILATION CORP. for an Order pursuant to CPLR 3212 granting defendants DARWIN LEE SERVANTES and COOL WIND VENTILATION CORP. summary judgment and dismissing any and all claims asserted against DARWIN LEE SERVANTES and COOL WIND VENTILATION CORP.; and on this cross-motion by plaintiff CONOR P. CARR for an Order granting plaintiff leave to serve a supplemental bill of particulars pursuant to CPLR 3025(b):

Papers/Numbered

Notice of Motion(Seq. No. 7)-Affirmation-Exhibits EF 121 - 134

Salvatore Cali & Apple Towing Co.'s Affirmation in Opposition EF 175 - 177

Notice of Cross-Motion-Affirmation-Exhibits EF 183 - 187

Affirmation in Opposition EF 110

Reply Aff. to Cali & Apple Towing's Opp EF 181 - 182

Reply Aff. and Aff. in Opp. to Cross-Motion EF 190 - 191

This is an action to recover damages for personal injuries allegedly sustained by plaintiff as a result of a four vehicle accident that occurred on December 9, 2010 on the Long Island Expressway in the westbound middle lane near the Midtown Tunnel.

This action was commenced by the filing of a summons and complaint on November 25, 2013. Defendants Salvatore Cali and Apple Towing Co., Inc. joined issue by service of a verified answer on July 10, 2014. Defendants Darwin Lee Servantes and Cool Wind Ventilation Corp. joined issue by service of a verified answer on January 3, 2014. Defendants Lazar Lazarovski and Nikola Lazarovski joined issue by service of a verified complaint on January 4, 2014. By Short Form Order dated August 16, 2017 and entered on August 30, 2017, this Court granted defendants Salvatore Cali and Apple Towing Co., Inc.'s summary judgment motion. Defendants Darwin Lee Servantes (Servantes) and Cool Wind Ventilation Corp. (Cool Wind) now move for summary judgment and plaintiff cross-moves for leave to serve a supplemental bill of particulars.

Plaintiff appeared for an examination before trial on April 15, 2016. William Fumagalli was a passenger in his vehicle at the time of the accident. They were headed westbound on the Long Island Expressway. The accident occurred approximately one half mile before the Midtown Tunnel. The roadway went up a hill. The accident occurred on the other side of the hill. He first observed a disabled box truck when the vehicle traveling directly in front of him moved from the middle lane to the left lane. There were no flashing lights or any light on the truck. No one was behind the truck directing traffic. When he saw the truck, he put his foot on the brake and decelerated. He attempted to enter the right lane. There was a vehicle next to him in the left lane. Prior to any contact, he had reduced his speed to thirty miles per hour. When he switched lanes, the vehicle in the right lane struck the rear-end passenger side of his vehicle. Prior to that contact, he had put his right blinker on and began to enter the right lane. After the contact with the vehicle in the right lane, the front-end of the driver's side of his vehicle made contact with the right side of the rear-end of the disabled truck.

Non-party witness William Fumagalli appeared for an examination before trial on January 27, 2017. He testified that he was a passenger in plaintiff's vehicle at the time of the accident. There was a stalled box truck in the middle lane. The truck's flashers were not on. Plaintiff tried to avoid the truck by moving to the right. In the process, the passenger side of plaintiff's vehicle made contact with the driver's side of a vehicle which was fully in the right lane. As a result, plaintiff's vehicle "pin-balled" back into the tailgate of the disabled truck.

Lazar Lazarovski appeared for an examination before trial on July 29, 2016. He testified that he was involved in the subject accident. He was the operator of the vehicle owned by his father, Nikola Lazarovski. He was traveling in the right lane. He did not see plaintiff's vehicle until immediately before the contact. Plaintiff's vehicle swerved from the middle lane to the right lane. Plaintiff's vehicle came into contact with the driver's side of his vehicle.

Darwin Lee Servantes appeared for an examination before trial on July 29, 2016. He testified that he was an employee of Cool Wind Ventilation at the time of the accident. While coming up a hill in the middle lane of the subject roadway, the truck just shut down. It lost power and could not be started. He turned his hazards on immediately. His truck was supplied with flares. He did not used them. Bridge and Tunnel police came to the scene and called for a tow. The tow truck came to the scene with its flashing lights on and pulled in front of his disabled truck. The tow truck was on scene for approximately five minutes before the accident occurred. [*2]The tow truck operator was in the process of putting chains on tires when the impact occurred. The impact occurred to the rear of his vehicle, pushing his vehicle and the tow truck forward. Prior to the shutdown of the truck, he did not hear any noises emitting from the truck and no warning lights came on. He drove the subject truck five days a week from August 2007 to December 2010. He had no problems or concerns about the mechanical condition of the truck prior this incident.

Salvatore Cali appeared for an examination before trial on April 15, 2016. He testified that he was employed by Apple Towing as a tow operator on the date of the accident. He was contacted by a dispatcher that a disabled vehicle was present on the westbound Long Island Expressway near the Queens Midtown Tunnel. When he arrived, he observed the disabled vehicle in the middle lane just after the road's apex. He activated the hazard lights on top of the tow vehicle as he approached the disabled truck. He placed the tow truck in front of the disabled vehicle. The accident occurred within one to two minutes of his arrival on scene.

In support of the motion, defendants Servantes and Cool Wind submit an affidavit from Linda Jennings, an employee of Cool Wind, dated July 27, 2017. She affirms that her duties and responsibilities include keeping and maintaining the records pertaining to the vehicles. She performed a search of the business records concerning the maintenance and repair of the subject Cool Wind truck. A full and complete copy of the maintenance and repair records are annexed to her affidavit. The annexed records include an invoice from Milea Truck Sales of Queens Inc. (Milea). The invoice indicates that the customer stated that the truck was driving and began slowing down, eventually losing power, and died. The truck would not start again.

Based on the deposition testimony, counsel for defendants Servantes and Cool Wind contends that plaintiff failed to set forth a non-negligent explanation for striking the rear of the Servants/Cool Wind truck. Counsel further contends that defendants Servantes and Cool Wind have estabnlished their entitlement to summary judgment based on the emergency doctrine as they were faced with an emergency when the truck became disabled and shut down on the Long Island Expressway (citing McGown v Marcus, 216 AD2d 371 [2d Dept. 1995][finding that defendants were entitled to an emergency doctrine charge when the vehcile lost all electrical power and lights and stalled on the New York State Thruway]). Lastly, based on Ms. Jennings' affidavit and the maintenance records, counsel contends that the records reflect that there were no prior issues involving any type of sudden stalling on or before the subject accident.

Plaintiff and defendants Salvatore Cali and Apple Towing Co., Inc. oppose the motion. This Court notes that this action and all claims and cross-claims were already dismissed as against Salvatore Cali and Apple Towing Co., Inc.

In opposition, plaintiff submits the affidavit of Gregory L. Witte, a certified accident reconstructionist. He identifies the documents reviewed prior to making his report. He opines that Servantes could have avoided the collision from occurring if he acted reasonably. Additionally, he opines that the mechanical failure of the Servantes and Cool Wind's vehicle was a foreseeable occurrence.

Counsel for plaintiff contends that Ms. Jennings failed to lay the proper foundation for Milea's business records since Ms. Jennings is not employed by Milea, she does not indicate that she was familiar with Milea's record making practices, and she failed to establish that Cool Wind does anything with the records other than merely filing the records. Thus, counsel argues that the [*3]maintenance records are inadmissible and may not be considered. Counsel also argues that Cool Wind and Servantes failed to establish the cause of the mechanical failure, that the truck's mechanical failure was unforeseeable, and that Servantes acted reasonably to warn other motorists of the stalled vehicle in the roadway.

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 or her position (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

To prevail on a motion for summary judgment in an action alleging negligence, a movant has the burden of establishing, prima facie, not only that the non-moving party was negligent, but that he or she was free from comparative fault (see Thoma v Ronai, 82 NY2d 736 [1993]).

"Except when necessary to avoid conflict with other traffic, or when in compliance with law or the directions of a police officer or official traffic-control device, no person shall. . . [s]top, stand or park a vehicle. . .[o]n a state expressway highway or state interstate route highway, including the entrances thereto and exits therefrom, which are a part thereof, except in an emergency" (Vehicle and Traffic Law 1202[a][1][j]).

Here, to the extent that movants contend that they were presented with an emergency situation because it was unforeseeable that the truck would stall, the evidence presents a question of fact as to whether the emergency doctrine is applicable to the facts of this case (see Kuci v Manhattan & Bronx Surface Tr. Operating Auth., 88 NY2d 923 [1996][finding that where some reasonable view of the evidence establishes that an actor was confronted by a sudden and unforeseen occurrence not of the actor's own making, then the reasonableness of the conduct in the face of the emergency is for the jury]; Rivera v. New York City Tr. Auth., 77 NY2d 322 [1991]; Palmer v Rouse, 232 AD2d 909 [3d Dept. 1996]). Here, the Milea invoice notes that the truck began slowing down and eventually lost power and died. Accordingly, there is at least a question of fact as to whether Servantes exercised due care under the circumstances and whether there was any comparative negligence, including, inter alia, whether the loss of power was foreseeable.

Since Servantes and Cool Wind failed to meet their initial burden as the movants, it is not necessary to review the sufficiency of the opposition papers (see Winegrad v New York University Medical Center, 64 NY2d 851 [1985]).

Turning to the cross-motion, plaintiff seeks to supplement the verified bill of particulars by alleging that Servantes and Cool Wind violated additional statutes, rules, and/or regulations including, Vehicle and Traffic Law 388, 1110(a), 1201, 1202(A), New York State Commercial Drivers Manual Section 2.5.2, and Federal Motor Carrier Safety Regulations, 49 CRF 392.22, et. seq.

In the absence of significant prejudice or surprise to the opposing party, leave to amend a pleading should be freely given unless the proposed amendment is palpably insufficient or patently devoid of merit (see CPLR 3025[b]; Edenwald Contr. Co. v City of New York, 60 NY2d 957 [1983]; Russo v Lapeer Contr. Co., Inc, 84 AD3d 1344 [2d Dept. 2011]; Martin v Village of Freeport, 71 AD3d 745 [2d Dept. 2010]; Malanga v Chamberlain, 71 AD3d 644 [2d Dept. 2010]). Mere lateness is not a barrier to an amendment in the absence of significant prejudice [*4](see Edenwald Contr. Co. v City of New York, 60 NY2d 957 [1983]).

Here, no prejudice has been demonstrated.

Accordingly, and based on the above reasons, it is hereby,

ORDERED, that the motion by defendants DARWIN LEE SERVANTES and COOL WIND VENTILATION CORP. is denied; and it is further

ORDERED, that the cross-motion by plaintiff CONOR P. CARR for leave to supplement the verified bill of particulars is granted.

Dated: November 20, 2017

Long Island City, N.Y

_____________________

ROBERT J. MCDONALD

J.S.C.