Opinion
Index No. 156977/2019 Motion Seq. No. 001
01-12-2024
LEANDER KNUST, Plaintiff, v. AMRITPAL SINGH, MDAMRIT TAXI INC., Defendant.
Unpublished Opinion
MOTION DATE 11/15/2022
PRESENT: HON. JAMES G. CLYNES Justice
DECISION + ORDER ON MOTION
JAMES G. CLYNES, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 27, 28,29, 30, 31,32, 33, 34, 35, 36, 37, 38, 39, 40, 41,42, 43, 44, 45 were read on this motion to/for JUDGMENT - SUMMARY.
Upon the foregoing documents and following oral argument, the motion by Plaintiff for summary judgment on the issue of liability and to strike the affirmative defense of comparative negligence (Third Affirmative Defense) from Defendants' answer is decided as follows:
Plaintiff seeks recovery from injuries allegedly sustained as a result of an October 22, 2018 motor vehicle accident between Plaintiff bicyclist and Defendants' vehicle.
In support of his motion, Plaintiff relies on his examination before trial (EBT) testimony and his affidavit. In his EBT, Plaintiff testified that he was biking north on Amsterdam Avenue, on the right, eastern side of the street, as he crossed the crosswalk across Amsterdam Avenue, entering the intersection with West 86th Street, he observed the light to be yellow, he looked both ways on 86th Street, he saw some cars waiting and he made eye contact with them, he proceeded into the intersection without stopping, he was almost fully across the intersection, underneath the light at the time of the accident. He further testified that he does not remember the moment of impact.
Plaintiff also submitted his affidavit, in which he averred that he was biking on Amsterdam Avenue approaching the intersection with 86th Street traveling at about 15 mph, the light was green, he looked both ways on 86th Street, made eye contact with the drivers, watched the traffic light as he travelled through the intersection and never observed it to be red, and he was almost out of the intersection when he was struck on his right side.
The Court notes Plaintiffs affidavit was executed in Illinois but does not include the certificate of conformity. A certificate of conformity, which attests that an affidavit executed outside of the State of New York conforms with the format for taking oaths and making affidavits within the relevant foreign state, is required to be annexed to the affidavits executed and sworn to outside of New York (CPLR. 2309). However, the absence of the certificate of conformity, does not require the court to disregard the affidavit or reject the plaintiff's papers, as the failure to include a certificate of conformity is a mere irregularity that may be cured by the submission of the proper certificate nunc pro tunc (Parra v Cardenas, 183 A.D.3d 462 [1st Dept 2020]). Thus, here, the Court will nonetheless consider Plaintiffs affidavit in its determination of this motion. Plaintiff is directed to providing a certificate of conformity nunc pro tunc.
Plaintiff also submits a certified police report which states that the driver of vehicle 1 (Defendant Driver) stated that he was traveling westbound on West 86 Street when a bicyclist disregarded the traffic control device and turned in front of vehicle 1 (Defendant Driver). The driver of vehicle 1 stated that he used his brakes but was unable to avoid the bicyclist. Two witnesses indicated that vehicle 1 had the right of way and the bicyclist disregarded the traffic device and cut in front of vehicle 1. The bicyclist was struck and thrown from his bicycle.
In opposition. Defendants rely on the sworn statement of a non-party witness, John Quackenbush, in which he avers that he was traveling in the right lane on 86th Street, at Amsterdam Avenue he stopped at the red light, when the light changed to green, he observed a vehicle traveling in the left lane at a moderate speed with the green light in his favor, when suddenly, he saw a bicyclist traveling at a fast rate of speed from the south of Amsterdam Avenue collide into the front of the vehicle traveling to his left in the middle of the crosswalk.
Pursuant to the Court Order dated May 16, 2022, Defendant Driver is "precluded from testifying at the time of trial and further precluded from producing any affidavits in support or in opposition to any motions."
In reply, Plaintiff contends that the court should not consider the statement of non-party witness Quackenbush as Defendants are precluded from offering any affidavits in opposition, including that of non-party witnesses, and the statement is not notarized and is therefore inadmissible. The May 16, 2022 Court Order precluding Defendant Driver from testifying or offering an affidavit, as well as the July 25, 2022 Court Order precluding Defendant Driver from "testifying at trial, and from submitting their own affidavit in motion practice" relate only to Defendant Driver, not a non-party witness. Thus, the court finds that Defendants are not precluded from offering the statement of non-party witness Quackenbush in opposition to Plaintiffs motion.
The court also finds unavailing the Plaintiffs contention that the statement is inadmissible because it is unsworn and not notarized. The court notes that the first line upon which Mr. Quackenbush hand-wrote his account states "under penalty of perjury, having been duly sworn, I do hereby attest and state the following to be true." The court finds this sufficient to raise an issue of fact to preclude summary judgment in Plaintiffs favor.
It is true that Defendants, like Plaintiff, have failed to submit a certificate of conformity with the out-of-state affidavit. However, as stated above, this is not a fatal defect and "courts are not rigid about this requirement" (Matapos Tech. Ltd. v Cia. Andina de Comercio Ltda, 68 A.D.3d 672, 673 [1st Dept 2009]). Further, New York Senate Bill S5162, a newly enacted law in New York State, will amend CPLR 2106 removing the requirement for notarization of affidavits and sworn documents in civil cases and will take effect in January of 2024, less than one month away. Under these circumstances, the Court directs Defendants to correct the defect nunc pro tunc by providing a certificate of conformity (see Bank of N.Y. v Singh, 139 A.D.3d 486, 487 [1st Dept 2016]; Parra v Cardenas, 183 A.D.3d 462, 463 [1st Dept 2020]). The court finds no prejudice to either party. The motion is denied. Accordingly, it is
ORDERED that the motion by Plaintiff for summary judgment on the issue of liability and to strike the affirmative defense of comparative negligence (Third Affirmative Defense) from Defendants' answer is denied; and it is further
ORDERED that Plaintiff is directed to provide a certificate of conformity within 30 days of Notice of Entry; and it is further
ORDERED that Defendants are directed to provide a certificate of conformity within 30 days of Notice of Entry; and it is further
ORDERED that any relief sought not expressly addressed herein has nonetheless been considered; and it is further
ORDERED that within 30 days of entry, Defendants shall serve a copy of this Decision and Order upon Plaintiff with Notice of Entry.
This constitutes the Decision and Order of the Court.