Valdez v Gil

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Valdez v Gil 2021 NY Slip Op 31438(U) April 28, 2021 Supreme Court, New York County Docket Number: 158636/2020 Judge: J. Machelle Sweeting Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] NEW YORK COUNTY CLERK 04/28/2021 04:55 PM NYSCEF DOC. NO. 46 INDEX NO. 158636/2020 RECEIVED NYSCEF: 04/28/2021 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. J. MACHELLE SWEETING Justice ---------------------------------------------------------------------------------X IAS MOTION 62 INDEX NO. DANIEL VALDEZ, MOTION DATE Plaintiff, MOTION SEQ. NO. -vERICKSON GIL, ROCIO SANTOS, THE CITY OF NEW YORK, CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. 158636/2020 03/08/2021, 04/08/2021 001 002 DECISION + ORDER ON MOTION Defendant. ---------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 13, 14, 15, 16, 17, 18, 19, 21, 22, 23, 24, 25, 26, 27, 28, 29 JUDGMENT – SUMMARY were read on this motion to/for . The following e-filed documents, listed by NYSCEF document number (Motion 002) 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44 were read on this motion to/for CONSOLIDATE/JOIN FOR TRIAL . Pending before the court are two motions: Motion #001, filed by ERICKSON GIL (“Driver) and ROCIO SANTOS (“Owner”), seeks an order pursuant to CPLR § 3212, granting them summary judgment on the issue of liability, and dismissing any and all cross-claims and/or counterclaims asserted against them. Motion #002, filed by defendant the City of New York (the “City”), seeks an order consolidating the present matter (“Action #1”) with the action entitled Erickson Gil v. the City of New York and Consolidated Edison of New York, Inc., commenced in the Supreme Court, New York County under Index No.: 159300/2020, (“Action # 2”), for the purposes of joint trial and discovery, on the basis that both actions arise from the same incident, and involve common questions of law or fact. 158636/2020 VALDEZ, DANIEL vs. GIL, ERICKSON Motion No. 001 002 Page 1 of 6 1 of 6 [*FILED: 2] NEW YORK COUNTY CLERK 04/28/2021 04:55 PM NYSCEF DOC. NO. 46 INDEX NO. 158636/2020 RECEIVED NYSCEF: 04/28/2021 Upon the forgoing documents, Motion #001 is DENIED as premature with leave to renew, and Motion #002 is GRANTED on consent. In the underlying action, the Driver, ERICKSON GIL was operating a Nissan sedan registered to the Owner, ROCIO SANTOS. The Passenger, DANIEL VALDEZ (the “Passenger”), was seated in the front of the vehicle. The Driver and the Passenger are each suing for injuries allegedly sustained when they were traveling along Isham Street, and a New York City manhole cover suddenly, unexpectedly, and without warning, exploded open underneath the Sedan. Motion #001 The function of the court when presented with a motion for summary judgment is one of issue finding, not issue determination (Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395 [NY Ct. of Appeals 1957]; Weiner v. Ga-Ro Die Cutting, Inc., 104 A.D.2d331 [1st Dept. 1985]). The proponent of a motion for summary judgment must tender sufficient evidence to show the absence of any material issue of fact and the right to entitlement to judgment as a matter of law (Alvarez v. Prospect Hospital, 68 N.Y.2d 320 [NY Ct. of Appeals 1986]; Winegrad v. New York University Medical Center, 64 N.Y.2d 851 [NY Ct. of Appeals 1985]). Summary judgment is a drastic remedy that deprives a litigant of his or her day in court. Therefore, the party opposing a motion for summary judgment is entitled to all favorable inferences that can be drawn from the evidence submitted and the papers will be scrutinized carefully in a light most favorable to the non-moving party (Assaf v. Ropog Cab Corp., 153 A.D.2d 520 [1st Dept. 1989]). Summary judgment will only be granted if there are no material, triable issues of fact (Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395 [NY Ct. of Appeals 1957]). 158636/2020 VALDEZ, DANIEL vs. GIL, ERICKSON Motion No. 001 002 Page 2 of 6 2 of 6 [*FILED: 3] NEW YORK COUNTY CLERK 04/28/2021 04:55 PM NYSCEF DOC. NO. 46 INDEX NO. 158636/2020 RECEIVED NYSCEF: 04/28/2021 Here, the Driver and Owner (“Movants”) argue that they should be absolved from any liability for the accident, as a matter of law, based on the Driver’s affidavit, and a video of the accident, showing the manhole cover exploding beneath the sedan. The movants argue that there are no issues of fact to inculpate either of them as a responsible party for the Passenger’s alleged loss, as the Driver was “simply in the wrong place at the wrong time.” Co-defendant Consolidated Con Edison of New York, Inc. (“Con Ed”) and the Passenger each argue in their opposition papers that the motion should be denied as premature. Con Ed argues that there has been no Preliminary Conference Order filed in this action, and there was also a related (Action #2) that had not been consolidated with Action #1 at the time Con Ed filed its papers. Further, Con Ed argues that the video, which was stored on an external website, has not been authenticated, and that depositions of all parties are necessary, if for nothing else, to authenticate the “surveillance videos” and photographs produced in this action. In addition the Passenger argues that in the Driver’s sworn affidavit, as attached to the motion, the Driver stated that the manhole cover had “expectedly burst open [emphasis added].” The Passenger argues that if the Driver knew the manhole cover was going to burst, then the Driver had an obligation to avoid it, and that this failure to avoid the expected hazard constitutes negligence. The Passenger further argues that he is entitled to inquire about why the Driver expected the manhole cover to burst open; what the Driver may have done to avoid the resulting collision, given his expectation; where the Driver was looking before the collision; and what evasive steps the Driver took to avoid the collision. Here, the affidavit of the Driver reads: “While at the scene, I learned that the cause of the impact to the underside of my sedan was that a manhole cover had expectedly burst open, without warning, just as I was driving over it [emphasis added].” It is likely that this is merely a clerical 158636/2020 VALDEZ, DANIEL vs. GIL, ERICKSON Motion No. 001 002 Page 3 of 6 3 of 6 [*FILED: 4] NEW YORK COUNTY CLERK 04/28/2021 04:55 PM NYSCEF DOC. NO. 46 INDEX NO. 158636/2020 RECEIVED NYSCEF: 04/28/2021 error, but there was no amended affidavit submitted, and in the reply filing, the Driver did not clarify this discrepancy. Further, the only “authentication” provided for the video was in the driver;s affidavit in question, which was not subject to voir dire by any of the parties. Given the preliminary nature of this matter, the court DENIES this motion as premature and gives the Driver and the Owner leave to refile their motion within a timely manner after relevant discovery has been conducted. See also Belziti v. Langford, 105 A.D.3d 649 (Sup. Ct. App. Div, 1st Dept. 2013) (“Green’s motion for summary judgment was properly denied as premature, since limited discovery has taken place and Green himself has not yet been deposed in this matter”); Weinstein v. WB/Stellar IP Owner, LLC, 125 A.D.3d 526 (Sup. Ct. App. Div, 1st Dept. 2015) (“Plaintiff opposed the motion on the ground that it was premature since ‘facts essential to justify opposition may exist but cannot then be stated’ […] Stellar's motion should have been denied as premature, since plaintiff had no opportunity to depose Stellar, codefendant Friends, or nonparty EDC concerning, among other things, the project and maintenance of the extended sidewalk area following its completion”). Motion #002 With respect to motion #002, a stipulation (NYCEF document #44) was filed on or about April 14, 2021, in which all counsel for all parties in Action #1 and Action #2 each consented to the consolidation. Accordingly, IT IS HEREBY ORDERED that the motion is GRANTED on consent, and the above-captioned action shall be consolidated for joint trial and discovery with Erickson Gil v. the City of New York and Consolidated Edison of New York, Inc. (Index No.: 159300/2020); and 158636/2020 VALDEZ, DANIEL vs. GIL, ERICKSON Motion No. 001 002 Page 4 of 6 4 of 6 [*FILED: 5] NEW YORK COUNTY CLERK 04/28/2021 04:55 PM NYSCEF DOC. NO. 46 INDEX NO. 158636/2020 RECEIVED NYSCEF: 04/28/2021 IT S FURTHER HEREBY ORDERED that the Clerk of the Court is directed to amend the caption to reflect the substitution of the parties and consolidation as follows: and; IT IS FURTHER HEREBY ORDERED that the City shall serve a copy of this order with Notice of Entry by regular mail on all parties and the persons entitled to notice. 158636/2020 VALDEZ, DANIEL vs. GIL, ERICKSON Motion No. 001 002 Page 5 of 6 5 of 6 [*FILED: 6] NEW YORK COUNTY CLERK 04/28/2021 04:55 PM NYSCEF DOC. NO. 46 INDEX NO. 158636/2020 RECEIVED NYSCEF: 04/28/2021 Conclusion IT IS HEREBY ORDERED that Motion #001 is DENIED as premature and the Driver and the Owner are hereby granted leave to refile their motion within a timely manner after relevant discovery has been conducted. IT IS HEREBY ORDERED that Motion #002 is GRANTED on consent. 4/28/2021 DATE CHECK ONE: $SIG$ J. MACHELLE SWEETING, J.S.C. CASE DISPOSED GRANTED X DENIED NON-FINAL DISPOSITION GRANTED IN PART APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 158636/2020 VALDEZ, DANIEL vs. GIL, ERICKSON Motion No. 001 002 X OTHER REFERENCE Page 6 of 6 6 of 6

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