Opinion
2015-06-19
Theodore J. SHAW, Lanette Shaw and Theodore James Shaw, Doing Business as Coliseum, Plaintiffs–Respondents, v. ROSHA ENTERPRISES, INC., Defendant–Appellant.
Hurwitz & Fine, P.C., Buffalo (Michael F. Perley of Counsel), for Defendant–Appellant. Walsh, Roberts & Grace, Buffalo (Keith N. Bond of Counsel), for Plaintiffs–Respondents.
Hurwitz & Fine, P.C., Buffalo (Michael F. Perley of Counsel), for Defendant–Appellant. Walsh, Roberts & Grace, Buffalo (Keith N. Bond of Counsel), for Plaintiffs–Respondents.
PRESENT: SCUDDER, P.J., SMITH, CARNI, SCONIERS, AND WHALEN, JJ.
MEMORANDUM:
Plaintiffs commenced this action seeking monetary damages after a tractor-trailer owned by defendant and permissively operated by its employee crashed into a building that plaintiffs owned and operated as a roller skating rink. Following the collision, the building was engulfed in a fire and sustained significant damage. Plaintiffs have been directed by the Town of Genesee to demolish the building on the ground that, in its current condition, the “building poses a threat to public safety.”
Plaintiffs moved for partial summary judgment on the issue of liability. Defendant opposed that motion and cross-moved for summary judgment seeking, inter alia, to limit damages to the market value of the property before the accident and to dismiss plaintiffs' claim for demolition costs. Supreme Court granted plaintiffs' motion and denied defendant's cross motion in part. We conclude that the court erred in granting plaintiffs' motion, and we therefore modify the order accordingly.
It is undisputed that the damage to plaintiffs' building was caused by the accident, but we nevertheless conclude that plaintiffs failed to meet their initial burden of establishing as a matter of law that the collision was caused by the negligence of defendant's employee (hereafter, driver) ( see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718). Aside from a verified bill of particulars and an amended verified bill of particulars, neither of which contains evidence in admissible form related to the circumstances of the accident, the only other evidence submitted by plaintiffs related to the accident was a police accident report. “Although a police report generally is admissible as a business record ..., statements contained in the report concerning the cause of an accident constitute inadmissible hearsay unless the reporting officer witnessed the accident ..., the reporting officer is qualified as an expert ..., or the statements meet some other exception to the hearsay rule” ( Huff v. Rodriguez, 45 A.D.3d 1430, 1432, 846 N.Y.S.2d 841; see Brady v. Casilio, 93 A.D.3d 1190, 1191, 940 N.Y.S.2d 396). Inasmuch as the reporting officer did not witness the accident and was not qualified as an expert, the statements contained in the report, to be admissible, must fall within an exception to the hearsay rule. Plaintiffs failed to establish that the statements contained in the police report concerning the cause of the accident fall within such an exception, and thus the cause of the accident is a matter for speculation, which is insufficient to establish as a matter of law that the driver was negligent.
Even if we were to consider the inadmissible statements contained within the police accident report, we would nevertheless conclude that they raise triable issues of fact whether the driver, who has since passed away from unrelated causes, was negligent. Immediately after the accident, the driver informed the reporting officer that he “swerved to the left to avoid an unknown object in [the] roadway.” In our view, that statement raises triable issues of fact on the applicability of the emergency doctrine and the driver's purported negligence ( see Fitz–Gerald v. Rich, 251 A.D.2d 1017, 1017–1018, 674 N.Y.S.2d 232; see also Ferris v. Grogan, 84 A.D.3d 1571, 1572, 922 N.Y.S.2d 634, lv. denied 17 N.Y.3d 709, 2011 WL 4089806; Mazzarella v. McVeigh, 283 A.D.2d 557, 557, 725 N.Y.S.2d 70; Lanza v. Wells, 99 A.D.2d 506, 506, 470 N.Y.S.2d 676). Contrary to plaintiffs' contention, this is not a situation in which defendant has opposed a motion for summary judgment by relying on hearsay ( cf. Weinstein v. Nicolosi, 117 A.D.3d 1036, 1037, 986 N.Y.S.2d 527; Candela v. City of New York, 8 A.D.3d 45, 47, 778 N.Y.S.2d 31; Sunfirst Fed. Credit Union v. Empire Ins. Co./All City Ins. Co., 239 A.D.2d 894, 894–895, 659 N.Y.S.2d 656). Rather, this is a situation in which plaintiffs, in support of their own motion, submitted hearsay statements raising a triable issue of fact and, in effect, “adopted [those statements] as accurate” ( Vetrano v. J. Kokolakis Contr., Inc., 100 A.D.3d 984, 986, 954 N.Y.S.2d 646; see also Carey v. Five Bros., Inc., 106 A.D.3d 938, 939–940, 966 N.Y.S.2d 153).
In their reply papers, plaintiffs submitted evidence that, years before the motion, the driver had pleaded guilty to a change lane hazard ( seeVehicle and Traffic Law § 1128[d] ) with respect to the accident. They also submitted portions of the deposition from a police officer who responded to the scene of the accident and interviewed the driver. According to the officer's testimony, the driver stated that “he saw something in the roadway and that he swerved to miss it.” The driver repeated that statement to the officer several days later. Although it is well settled that courts may not consider evidence submitted in reply papers when determining whether a party met its initial burden on a summary judgment motion ( see Walter v. United Parcel Serv., Inc., 56 A.D.3d 1187, 1188, 867 N.Y.S.2d 805; Wonderling v. CSX Transp., Inc., 34 A.D.3d 1244, 1245, 824 N.Y.S.2d 839), plaintiffs' attorney contended at oral argument of this appeal that there had been an agreement to refile the motion following the officer's deposition.
Were we to consider the documents filed by plaintiffs in their “reply” papers in determining whether plaintiffs met their initial burden, we would nevertheless conclude that there are triable issues of fact whether the driver was negligent. It is well settled that “the fact that [the] driver entered a plea of guilty to a Vehicle and Traffic Law offense is only some evidence of negligence and does not establish his negligence per se” ( Verkey v. Hebard, 99 A.D.3d 1205, 1206, 952 N.Y.S.2d 356; see Kelley v. Kronenberg [Appeal No. 2], 2 A.D.3d 1406, 1407, 770 N.Y.S.2d 217; Cullipher v. Traffic Markings [Appeal No. 3], 259 A.D.2d 992, 992–993, 688 N.Y.S.2d 866; Canfield v. Giles [Appeal No. 1], 182 A.D.2d 1075, 1075, 585 N.Y.S.2d 242; see generally Ando v. Woodberry, 8 N.Y.2d 165, 171, 203 N.Y.S.2d 74, 168 N.E.2d 520). Rather, it is the “ unexcused violation of the Vehicle and Traffic Law [that] constitutes negligence per se” (Long v. Niagara Frontier Transp. Auth., 81 A.D.3d 1391, 1392, 917 N.Y.S.2d 463 [emphasis added]; see Stalikas v. United Materials, 306 A.D.2d 810, 811, 760 N.Y.S.2d 804, affd. 100 N.Y.2d 626, 769 N.Y.S.2d 191, 801 N.E.2d 411; Arms v. Halsey, 43 A.D.3d 1419, 1419, 842 N.Y.S.2d 847; Heffernan v. Logue, 40 A.D.2d 1071, 1071, 339 N.Y.S.2d 225). If a trier of fact accepts as true the position that the driver swerved to avoid an object in the road, the jury may excuse the driver's alleged negligence, in which case defendant would not have any vicarious liability for the accident ( see Fitz–Gerald, 251 A.D.2d at 1017–1018, 674 N.Y.S.2d 232; see also Ferris, 84 A.D.3d at 1572, 922 N.Y.S.2d 634; Mazzarella, 283 A.D.2d at 557, 725 N.Y.S.2d 70; Lanza, 99 A.D.2d at 506, 470 N.Y.S.2d 676).
Even assuming, arguendo, that plaintiffs met their initial burden, we would still conclude that their motion should have been denied. A party opposing a motion for summary judgment “must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which [the party] rests [its] claim or must demonstrate [an] acceptable excuse for [its] failure to meet the requirement of tender in admissible form ” ( Zuckerman, 49 N.Y.2d at 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [emphasis added] ). Here, defendant established an acceptable excuse for its failure to submit evidence in admissible form to oppose plaintiffs' motion. Defendant's driver, who would be the person in possession of the relevant knowledge, was unavailable because he had passed away from unrelated causes before he could be deposed concerningthe circumstances of the accident ( see e.g. Egleston v. Kalamarides, 58 N.Y.2d 682, 684, 458 N.Y.S.2d 530, 444 N.E.2d 994; Gizzi v. Hall, 300 A.D.2d 879, 881, 754 N.Y.S.2d 373; Maldonado v. Townsend Ave. Enters., Ltd. Partnership, 294 A.D.2d 207, 208, 741 N.Y.S.2d 696). While we agree with plaintiffs that defendant's reliance on the Noseworthy doctrine ( Noseworthy v. City of New York, 298 N.Y. 76, 80 N.E.2d 744) is unpreserved for our review ( see Ciesinski v. Town of Aurora, 202 A.D.2d 984, 985, 609 N.Y.S.2d 745) and, in any event, misplaced, defendant raised the unavailability of its driver in opposition to the motion and thus preserved for our review its contentions concerning its inability to oppose plaintiffs' motion with evidence in admissible form. This is not a situation in which the party opposing summary judgment “failed to submit any evidence other than hearsay in opposition to [plaintiffs'] motion and did not tender any excuse for the failure to do so” ( Sunfirst Fed. Credit Union, 239 A.D.2d at 895, 659 N.Y.S.2d 656 [emphasis added]; cf. Candela, 8 A.D.3d at 47, 778 N.Y.S.2d 31; Narvaez v. NYRAC, 290 A.D.2d 400, 400–401, 737 N.Y.S.2d 76).
We agree with plaintiffs, however, that the court properly denied that part of defendant's cross motion for summary judgment seeking to limit damages. It is well settled that the standard for assessing damages to property is the lesser of replacement cost or diminution in market value ( see Fisher v. Qualico Contr. Corp. 98 N.Y.2d 534, 540, 749 N.Y.S.2d 467, 779 N.E.2d 178; Hartshorn v. Chaddock, 135 N.Y. 116, 122, 31 N.E. 997, rearg. denied 32 N.E. 648; Franklin Corp. v. Prahler, 91 A.D.3d 49, 57, 932 N.Y.S.2d 610). Here, it is undisputed that the cost of the required demolition exceeds the fair market value of the property before the accident. Defendant contends that plaintiffs' damages are limited to the market value of the property before the accident, with no consideration of demolition costs, inasmuch as the full market value of the property before the accident is less than the repair or replacement cost. We agree with plaintiffs, however, that demolition costs are recoverable where the property to be demolished constitutes a “safety hazard beyond repair” ( Lichter v. 349 Amsterdam Ave. Corp., 22 A.D.3d 394, 395, 802 N.Y.S.2d 362, lv. denied 6 N.Y.3d 704, 811 N.Y.S.2d 336, 844 N.E.2d 791). There are also situations in which a property may be deemed to have a negative market value, i.e., where the cost to remediate the property exceeds the market value of the property ( see Matter of Roth v. City of Syracuse, 21 N.Y.3d 411, 415, 972 N.Y.S.2d 161, 995 N.E.2d 123; Matter of Commerce Holding Corp. v. Board of Assessors of Town of Babylon, 88 N.Y.2d 724, 729–730, 649 N.Y.S.2d 932, 673 N.E.2d 127). “It is well settled that the purpose of awarding damages in a tort action is to make the plaintiff whole” ( Franklin Corp., 91 A.D.3d at 54, 932 N.Y.S.2d 610). Moreover, “valuation [is] largely a question of fact, and the [trial] courts have considerable discretion in reviewing the relevant evidence as to the specific propert[ies] before them” ( Matter of Consolidated Edison Co. of N.Y., Inc. v. City of New York, 8 N.Y.3d 591, 597, 838 N.Y.S.2d 458, 869 N.E.2d 634).
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying plaintiffs' motion, and as modified the order is affirmed without costs.