Garrido v Fermin

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[*1] Garrido v Fermin 2018 NY Slip Op 51974(U) Decided on December 17, 2018 Supreme Court, Bronx County Brigantti, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 17, 2018
Supreme Court, Bronx County

Alain Garrido, Plaintiff,

against

Jose Fermin, Defendant.



307432/2013



Counsel for Defendant/movant Jose Fermin: Law Office of Dennis C. Bartling (Richard Stiek, Esq.)

Counsel for Plaintiff/opponent Alain Garrido: Harmon, Linder & Rogowsky (Mark J. Linder, Esq.)
Mary Ann Brigantti, J.

The following papers numbered 1 to __________ were read on this motion ( Seq. No. _________ ) for __ SUMMARY JUDGMENT __ noticed on __ June 21, 2018 __.



Notice of Motion - Order to Show Cause - Exhibits and Affidavits Annexed No(s). 1, 2

Answering Affidavit and Exhibits No(s). 3, 4

Replying Affidavit and Exhibits No(s). 5

Upon the foregoing papers, defendant Jose Fermin ("Fermin" or "Defendant") moves for summary judgment dismissing the complaint against plaintiff Alain Garrido ("Garrido" or "Plaintiff") on the issue of liability and that the issues in this case were previously decided by summary jury trial. Plaintiff opposes the motion.

This action arises out of an alleged motor vehicle accident that occurred on February 11, 2011. The accident allegedly occurred between a vehicle owned and operated by Fermin and another vehicle operated by Garido and owned by Nionil Rodriguez ("Rodriguez"). In a prior companion action, Gabriel Tejada ("Tejada"), allegedly a passenger in Garrido's vehicle, brought a lawsuit against Fermin, Garrido, and Rodriguez. The parties to the prior companion action agreed to a summary jury trial on the issues of damages and liability by so-ordered stipulation dated February 7, 2017.[FN1] The summary jury trial took place on September 22, 2017, before the [*2]Honorable Joseph Capella, J.S.C., which resulted in a same-day jury verdict. The jury determined that while Fermin was negligent in the operation of his vehicle, his negligence was not a substantial contributing factor to the accident. The jury further found that Garrido was negligent and that his negligence was a substantial contributing factor to the accident. Although the jury had determined that Fermin's negligence was not a substantial contributing factor to the accident, they went on to find Fermin 25% at fault and Garrido 75% at fault.

Defendant now moves for summary judgment on the grounds that: (1) his vehicle was stopped when it was struck in the rear by Plaintiff; and (2) the issues in this matter were previously decided by a jury to verdict where Fermin was not found to be a substantial contributing factor to the accident.

In support of his motion, Defendant submits testimony wherein he asserts that as he was driving along the Major Deegan in the Bronx, his vehicle was struck from the rear by another vehicle. Defendant states that the collision occurred when he abruptly stopped for a vehicle that stopped in front of him. Defendant claims that as he applied his brakes to avoid a collision with the vehicle in front of him, his vehicle was struck on its rear passenger side by another vehicle. In addition, Defendant argues that the prior summary jury trial constitutes the law of the case. Defendant maintains that while the jury found him to be 25% responsible for the accident, the jury also found his actions to not be a substantial contributing factor to the accident. In opposition to the motion, Plaintiff submits an affirmation from counsel arguing that: (1) the law of the case doctrine is not applicable to this case; (2) the prior summary jury trial verdict is inconsistent and should not be applied to this case; and (3) because Plaintiff's prior counsel did not object to the inconsistent summary jury trial verdict, which Plaintiff's current counsel would have done, the prior inconsistent verdict should not be applied in the interest of justice.

"The law of the case doctrine is part of a larger family of kindred concepts, which includes res judicata (claim preclusion) and collateral estoppel (issue preclusion)" (People v. Evans, 94 NY2d 499, 502 [2000]). Similar to res judicata and collateral estoppel, "preclusion under the law of the case contemplates that the parties had a 'full and fair' opportunity to litigate the initial determination" (id. [citations omitted]). While res judicata "precludes a party from litigating 'a claim where a judgment on the merits exists from a prior action between the same parties involving the same subject matter'" (Matter of Josey v. Goord, 9 NY3d 386, 389 [2007], citing In re Hunter, 4 NY3d 260, 269 [2005]), "law of the case addresses the potentially preclusive effect of judicial determinations made in the course of a single litigation before final judgment" (Evans, 94 NY2d at 502 [citations omitted]). Law of the case "directs a court's discretion, but does not restrict its authority" (id. at 503 [internal citations and quotations omitted]). In addition, while res judicata and collateral estoppel are rules "recognized in the CPLR... law of the case doctrine is found in no New York statute" (id.). Accordingly, "the 'law of the case' is a rule of practice, an articulation of sound policy that, when an issue is once judicially determined, that should be the end of the matter as far as Judges and courts of co-ordinate jurisdiction are concerned" (Martin v. Cohoes, 37 NY2d 162, 165 [1975] [citations omitted]).

In this case, the Court refuses to reopen what has already been decided. As a Court of [*3]co-ordinate jurisdiction, the Court should not rule on a matter that was previously judicially determined. Accordingly, pursuant to the law of the case doctrine, "aptly characterized as 'a kind of intra-action res judicata'" (Evans, 94 NY2d at 502, citing Siegel, New York Practice § 448, at 723 [3d ed]), the prior summary jury trial verdict is applicable to this case. The Court notes that the traditional rule of res judicata, which the parties have not raised in their moving papers, would not be applicable here because res judicata applies only to judgments on the merits. The default summary jury trial rules, that the parties agreed to follow, prohibit "judgment[s]".

With regard to the prior inconsistent verdict, the default rules of summary jury trials state that "the trial judge shall question and charge the jury as appropriate to resolve any inconsistency in said verdict." The so-ordered stipulation, dated February 7, 2017, was executed by counsel for each party in this action and constitutes a binding contract (see CPLR 2104; Williams v. Belova, 121 AD3d 572 [1st Dept 2014]). Here, the Plaintiff argues that the prior summary jury trial verdict was inconsistent. However, the Court has no authority to find the prior summary jury trial verdict inconsistent as the proper procedure was for Plaintiff's counsel to raise that issue to the trial judge following the inconsistent verdict. This request is also precluded by the stipulated summary jury trial rules as the parties "agreed to waive motions to set aside the verdict or judgment rendered by the jury" (Conrad v. Alicea, 117 AD3d 560 [1st Dept 2014]). Furthermore, it has been over one year since the summary jury trial verdict was rendered and any attempt to raise an inconsistent verdict argument with the trial judge has been waived. In light of the foregoing, the Defendant's motion for summary judgment is granted based on the jury's verdict finding that Defendant was not a substantial contributing factor to the accident.

Additionally, the Court declines Plaintiff's invitation to not apply the prior summary jury trial verdict in the interest of justice. Plaintiff's counsel argues that Plaintiff did not have the benefit of Plaintiff's current counsel during the course of the summary jury trial, and that if Plaintiff had such representation, Plaintiff's current counsel would have "appealed or applied for other relief from the Court." This argument is of no avail as the default summary jury trial rules prohibit appeals and Plaintiff was, at the time of the summary jury trial, represented by other competent counsel. As Plaintiff was represented by competent counsel throughout the summary jury trial proceeding, and given ample opportunity to present his case, he is not entitled to deny the existence of the prior summary jury trial verdict (see generally, id.).

Even assuming arguendo that law of the case doctrine is inapplicable, meaning that the prior summary jury trial verdict has no binding effect, as argued by Plaintiff, the Court would find that Defendant is still entitled to summary judgment.

"It is well settled that a rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the driver of the rear vehicle, and imposes a duty on the part of the operator of the moving vehicle to come forward with an adequate non-negligent explanation for the accident" (Cabrera v Rodriguez, 72 AD3d 553 [1st Dept. 2010], citing Tutrani v County of Suffolk, 10 NY3d 906, 908 [2008]; see also Agramonte v City of New York, 288 AD2d 75, 76 [1st Dept. 2001]; Dattilo v Best Transp. Inc 79 AD3d 432 [1st Dept. 2010]).

In this case, Defendant has established a prima facie case of negligence on the part of Plaintiff, as Defendant submitted his deposition testimony in support of his motion asserting that his vehicle was struck in the rear by Plaintiff's vehicle when he abruptly stopped for a vehicle that stopped in front of him (see Cabrera, 72 AD3d 553; Alvarez v Bryant, 143 AD3d 527, [*4]527-528 [1st Dept 2016]). The burden therefore shifted to Plaintiff to provide evidence of a "nonnegligent explanation for the accident, or a nonnegligent reason for [his] failure to maintain a safe distance between [his] car and the lead car" (see Mullen v. Rigor, 8 AD3d. 104 [1st Dept. 2004] citing Jean v Xu, 288 AD2d 62 [1st Dept. 2001]).

Plaintiff failed to carry this burden. Plaintiff has personal knowledge of relevant facts, but failed to lay bare his proofs as he did not submit an affidavit in opposition to the motion (see Thompson v. Pizzarro, 155 AD3d 423 [1st Dept. 2017], citing Avant v. Cepin Livery Corp., 74 AD3d 533 [1st Dept. 2010]). Indeed, Plaintiff submits no affidavit from himself or anyone else with personal knowledge disputing the series of events as described by Defendant. Plaintiff's affirmation from counsel similarly contains no argument or admissible evidence disputing the series of events as described by Defendant. Accordingly, Defendant's motion for summary judgment is granted as Plaintiff raises no triable issues of fact (see Mullen v. Rigor, 8 AD3d 104 [1st Dept 2004]).

Accordingly, it is hereby

ORDERED, that Defendant's motion for summary judgment is granted.

This constitutes the Decision and Order of this Court.



Dated: December 17, 2018

Hon.________________________________________

J.S.C. Footnotes

Footnote 1:Defendants objected to the Court requesting a supplemental stipulation that the parties agreed to enter into for the prior summary jury trial. The Court, however, has discretion to consider the stipulation as it clarifies the parameters agreed to by the parties in the prior summary jury trial (see Bank of NY Mellon v Knowles, 151 AD3d 596, 597 [1st Dept 2017]; Ostrov v. Rozbruch, 91 AD3d 147, 155 [1st Dept 2012]). Moreover, said stipulation is publicly available on the Bronx County Clerk's Office website.