Brown v Tyson

[*1] Brown v Tyson 2019 NY Slip Op 50200(U) Decided on February 14, 2019 Civil Court Of The City Of New York, Bronx County Gomez, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 14, 2019
Civil Court of the City of New York, Bronx County

Carolene S. Brown, Plaintiff(s),

against

Nadine A. Tyson, Defendant(s).



13548/18



Plaintiff appeared pro se

Defendant's counsel: Sophia Trott, Esq.
Fidel E. Gomez, J.

The instant action is for property damage arising from a motor vehicle accident. The endorsed complaint alleges that plaintiff seeks to recover $10,000 in damages caused to her vehicle on June 16, 2018.

During an off-the-record conference, plaintiff amplified the allegations in her complaint alleging that the instant action arose from defendant's negligence in the operation of her vehicle. Specifically, plaintiff alleged that on June 16, 2018, while plaintiff's, Kamin Miller (Miller), was operating plaintiff's vehicle, he was involved in an accident, when defendant pulled out of a parking spot and collided with plaintiff's vehicle. Because plaintiff did not plead a cause of action for personal injuries nor one for loss wages and because she had no medical evidence [FN1] nor evidence to support a claim for lost wages [FN2] , the Court limited her claim to property damage totaling $2,319.03.

On February 13, 2019, this case was tried before this Court. Plaintiff appeared pro se [FN3] while defendant appeared by counsel.

In her case in-chief, plaintiff testified that on June 16, 2018, Miller was involved in an accident while operating plaintiff's black Audi sedan. While not present at the situs of the accident, she was called thereto by Miller. She reported to the scene and observed defendant's vehicle, a Mercedes Benz SUV, jutting out into the roadway in between two parked vehicles. She also observed her vehicle parked across from it. While she did not recall the location of the accident, she testified that the roadway thereat was a one-way road, had one lane for moving traffic and a parking lane on each side of the road. She observed that her vehicle had sustained front door and fender damage. Specifically, she saw scratches and dents thereon. Plaintiff testified that she ultimately got the car repaired and paid cash.

Plaintiff submitted an invoice into evidence (Plaintiff's Exhibit 2), which indicates that her vehicle was repaired by RC Autowork. The invoice, dated July 2, 2018, describes the vehicle as a black Audi. The invoice states that the vehicle's right front bumper, right front door, right front door molding, and right rear door were repaired and that the right front fender and right front wheel were replaced. The invoice also indicates that the right suspension was replaced and that an alignment was performed. The total for the foregoing, as per the invoice, was $2,319.03. Notably, the charge for the suspension and alignment work was $1,000 in parts and 2.5 hours for labor. According to the invoice the work involved 11.5 hours of labor for a total of $687.50. Thus, the labor rate was approximately $60 per hour.

Miller testified on plaintiff's behalf as follows: On the date of this accident, he was operating plaintiff's vehicle. Miller was on his way home from the store, with his siblings in the car, when he was involved in an accident. Specifically, while traveling on 11th Avenue, near its intersection Pitman Avenue, in Mt. Vernon, NY, he was impacted by defendant's vehicle - a Mercedes Benz SUV - when it suddenly pulled out of parking spot on Miller's right. As Miller's vehicle passed defendant's vehicle at approximately 20 miles per hour, defendant pulled into his lane of travel, striking Miller's vehicle in the front passenger side. Prior to impact, Miller did not see the turn signal on defendant's vehicle in use. After the accident, Miller noted that the entire passenger side of his vehicle had been damaged.

Defendant testified in her case in-chief as follows: On the date of the instant accident she was operating her vehicle - a Mercedes Benz ML 350. She was with her mother and son and had just parked on Pitman Avenue, intending to go to a restaurant for her mother's birthday. Because she was too far from the curb, she proceeded to pull out of the spot to straighten her vehicle. She looked at her mirror for oncoming traffic and seeing none, pulled out. As she did so, she saw plaintiff's vehicle traveling on Pitman Avenue at approximately 50 miles per hour. The vehicles came into contact and plaintiff's vehicle stopped three car lengths past her vehicle. After the accident, she noted that her vehicle had scratches on its front fender and that plaintiff's vehicle had scratches on its front fenderd and doors.

Defendant submitted two photographs into evidence (Defendant's Exhibits A and B), which depict minor scratches and blue paint on a white vehicle.

Laaisia Murdock (Murdock) testified on behalf of defendant as follows: On the date of the instant accident, she was inside a restaurant waiting for defendant - her mother - to arrive. She reported to the scene of an accident involving her mother and noted that plaintiff's vehicle was past defendant's vehicle, approximately 4 car lengths away. She noted scratches to defendant's car and scratches on plaintiff's car spanning the length of the vehicle.

Based on the foregoing, the Court credits Miller and defendant's testimony with regard to how the instant accident occurred, finds that defendant violated VTL § 1162, is therefore negligent as a matter of law and that said negligence caused the instant accident. The Court, however, credits defendant and Murdock's testimony regarding the damage to plaintiff's vehicle and finds that it did not sustain wheel or suspension damage. Thus, plaintiff is only entitled to $1,169.03 (the total amount of the repair minus the labor and parts for the wheel, suspension damage, and alignment).

It is well settled that "in a bench trial, no less than a jury trial, the resolution of credibility issues by the trier of fact and its determination of the weight to be accorded the evidence presented are entitled to great deference" (People v McCoy, 100 AD3d 1422, 1422 [4th Dept 2012]). Indeed, when findings of fact rest in large measure on considerations related to the credibility of witnesses, a trial court's determination on this issue is accorded great deference (Ning Xiang Liu v Al Ming Chen, 133 AD3d 644, 644 [2d Dept 2015]). Absent conclusions that cannot be supported by any fair interpretation of the evidence, a judgment rendered after a bench trial should not be disturbed (Saperstein v Lewenberg, 11 AD3d 289, 289 [1st Dept 2004]).

It is well settled that a violation of a statute imposing a specific duty constitutes negligence per se and may impose absolute liability while a violation of local rule or ordinance is merely some evidence of negligence (Elliot v City of New York, 95 NY2d 730, 734 [2001]).

VTL § 1162 states, in relevant part, that

[n]o person shall move a vehicle which is stopped, standing, or parked unless and until such movement can be made with reasonable safety

(NY VEH & TRAF § 1162 [McKinney]). Thus, an accident caused when a parked vehicle pulls into a lane of moving traffic colliding with a vehicle traveling thereon is prima facie evidence of negligence as against the previously parked vehicle (Adobea v Junel, 114 AD3d 818, 820 [2d Dept 2014]; Davis v Turner, 132 AD3d 603, 603 [1st Dept 2015]; Flores v City of New York, 66 AD3d 599, 599 [1st Dept 2009]). In Adobea, defendant, a taxi, was sued by his passenger when defendant's vehicle was involved in a motor vehicle accident (id. at 818). The accident occurred as defendant's vehicle traveled on a roadway and was impacted by a vehicle attempting to merge into the defendant's lane of travel from a parked position (id. at 819). In granting defendant's motion for summary judgment, the court noted that a parked vehicle suddenly entering the lane of moving traffic which collides with another vehicle violates VTL § 1162; such violation constituting negligence as a matter of law (id. at 819-820). The court also reiterated the well-settled principle that "[t]he driver with the right-of-way is entitled to anticipate that the other motorist will obey traffic laws which require him or her to yield" (id. at 819; see also Williams v Hayes, 103 AD3d 713, 714 [2d Dept 2013]; Figueroa v Diaz, 107 AD3d 754, 755 [2d Dept 2013]). Based on the foregoing, the court held that [h]ere, the defendants met their prima facie burden of demonstrating their entitlement to judgment as a matter of law. [defendant's] deposition testimony that the driver of the other vehicle suddenly, without signaling, attempted to merge from the parking lane into the lane in which [defendant] had been traveling, and that [defendant] saw that other vehicle only for a second before the impact occurred, established that the other driver violated Vehicle and Traffic Law §§ 1143 and 1162 so that the other driver was negligent as a matter of law

(Adobea at 820 [internal quotation marks omitted]).

Here, with Miller's testimony, plaintiff established that the instant accident occurred when defendant pulled her vehicle out of a parking spot and into his lane of travel, thus, causing the instant accident. As noted above, an accident caused when a parked vehicle pulls into a lane of [*2]moving traffic colliding with a vehicle traveling thereon is prima facie evidence of negligence as against the previously parked vehicle (Adobea at 820; Davis at 603; Flores at 599). Miller's version of the accident is, in fact, corroborated by defendant's testimony insofar as she testified that the instant accident occurred when she was pulling out of a parking spot to straighten her vehicle because it was too far from the curb. Despite defendant's testimony about Miller's high rate of speed and looking to see that it was safe to move her vehicle, she is nevertheless negligent because clearly as evinced by the collision, Miller was driving on the roadway and she failed to see him. Indeed, a motorist has a duty to operate his vehicle with reasonable care taking into account the actual and potential dangers existing from weather, road, traffic and other conditions (Ranaudo v Key, 83 AD3d 1315, 1316 [3d Dept 2011]). Stated differently, a driver has a duty to see what should be seen and taking ordinary care under the circumstances to avoid an accident (id. At 1316; Gage v Raffensperger, 234 AD2d 751, 752 [3D Dept 1996]; DeAngelis v. Kirschner, 171 AD2d 593, 595 [1st Dept 1991]). Significantly, Miller had no duty to avoid the instant accident because he had the right of away and nothing indicated that defendant would enter his lane of travel. Indeed, "[t]he driver with the right-of-way is entitled to anticipate that the other motorist will obey traffic laws which require him or her to yield" (Adobea at 819; see also Williams at 714; Figueroa at 755 [2d Dept 2013]).

With regard to damages, however, the Court credits defendant and Murdock's testimony, which indicates that the damage to the instant vehicles was limited to scratches. This is further supported by the defendant's photographs which show minor scratches to her vehicle. This minor damage is indicative of the severity of the impact and of the relative damage to plaintiff's car. Thus, the Court finds it incredible that as a result of this accident, plaintiff's vehicle sustained wheel and suspension damage requiring repair and/or replacement of such parts. Thus, plaintiff's damages are reduced accordingly and as noted above. It is hereby

ORDERED that the Clerk enter judgment in plaintiff's favor in the amount of $1,169.03, plus interest from the date of the judgment. It is further

ORDERED that defendant serve a copy of this Decision and Order with Notice of Entry upon plaintiff within thirty days (30) hereof.

This constitutes this Court's decision and Order.

Dated: February 14, 2019

Hon. Fidel E. Gomez, JCC Footnotes

Footnote 1: In an action for personal injuries arising from the operation of a motor vehicle, plaintiff must establish that the injuries alleged are the result of the accident claimed and that the limitations alleged are the result of those injuries (Noble v Ackerman, 252 AD2d 392, 394-395 [1st Dept 1998]). Plaintiff's proof must be objective (Toure v Avis Rent A Car Systems, Inc., 98 NY2d 345, 350 [2002]; Grasso v Angerami, 79 NY2d 813, 814-815 [1991]; Blackmon v Dinstuhl, 27 AD3d 241, 242 [1st Dept 2006]; Thompson v Abassi, 15 AD3d 95, 97 [1st Dept 2005]; Shinn at 198; Andrews v Slimbaugh, 238 AD2d 866, 867-868 [2d Dept 1997]; Zoldas v Louise Cab Corporation, 108 AD2d 378, 382 [1st Dept 1985]), and must demonstrate the existence of a serious injury contemporaneous with the accident alleged (Blackmon at 242; Thompson at 98 [Court held that the failure by plaintiff's doctor to provide objective proof of injury contemporaneous with the accident was fatal and was not cured by same doctor's finding of injury, with objective evidence, two and one half years later.); Nemchyonok v Ying, 2 AD3d 421, 421 [2d Dept 2003]; Pajda v Pedone, 303 AD2d 729, 730 [2d Dept 2003]; Jimenez v Kambli, 272 AD2d 581, 583 [2d Dept 2000]). The foregoing, of course, requires medical evidence.

Footnote 2: A plaintiff has the burden of establishing damages for past and future lost earnings with reasonable certainty (Gore v Cardany, 167 AD3d 851, 852 [2d Dept 2018];(Lodato v Greyhawk N. Am., LLC, 39 AD3d 494, 495 [2d Dept 2007]). Thus, to meet the foregoing burden, plaintiff is required to proffer tax returns, W—2 forms, or pay stubs (lodato at 495; Sdregas v City of New York, 309 AD2d 612, 613 [1st Dept 2003]). Here, plaintiff had no pay stubs, taxes, or W-2 forms so as to support he claim for lost wages.

Footnote 3: While plaintiff appeared without counsel, beyond explaining her basic rights - the right to testify, question witnesses, proffer documentary evidence and interpose objections, the Court provided her no additional aid. While courts will generally accord "pro se litigants some leeway in the presentation of their case, pro se litigants must still abide by court procedures and calendars" (Stoves & Stones, Ltd. v Rubens, 237 AD2d 280, 280 [2d Dept 1997]). This, of course, is because it is well settled that "[a] litigant appearing pro se acquires no greater right than any other litigant and such appearance may not be used to deprive defendants of the same rights enjoyed by other defendants" (Roundtree v Singh, 143 AD2d 995, 996 [2d Dept 1998]). Accordingly, this Court did not accord pro se plaintiff any special treatment and held her to the same standards of practice that it held defendant's lawyer.