Opinion
26644/2009.
March 2, 2011.
This is a personal injury action in which plaintiff, Michael Squiccerini ("plaintiff"), seeks to recover damages for injuries sustained by him as a result of a motor vehicle accident that occurred at approximately 11:00 a.m., on October 14, 2008, between the vehicle owned by defendant James A. Osario and operated by defendant Jean-Jacque Langlais ("defendant") and the plaintiff's vehicle on Jericho Turnpike near the intersection with 4th Avenue in Garden City, New York. Plaintiff moves for an order pursuant to CPLR 3212(b), granting summary judgment to the plaintiff on both the issue of liability and on the threshold issue of serious injury within the meaning of Insurance Law § 5102(d) and setting this matter down for assessment of damages. Plaintiff also moves for an order striking the defendants' answer pursuant to CPLR 3126 on the ground that the defendant has failed to comply with plaintiffs' demands for discovery.
The defendants cross-move for an order dismissing plaintiffs' complaint, pursuant to CPLR 3126, on the ground that plaintiff Michael Squiccerini has failed to appear for a scheduled physical examination scheduled by the defendants' orthopedist on three separate dates.
A summons and complaint dated September 25, 2009 was filed by the plaintiffs on October 5, 2009. Defendants served an answer on December 16, 2009.
At the time of the accident, plaintiff's vehicle had been parked outside of Saint Vincent de Paul's thrift shop where plaintiff had gone to purchase clothing. The plaintiff got into his car and pulled out from the parking spot into the middle lane of Jericho Turnpike. From the middle lane he changed lanes into the left lane. Upon changing lanes, his vehicle was struck by the vehicle operated by defendant, Jean-Jacque Langlais who was proceeding eastbound on Jericho Turnpike. When the police arrived at the scene they arrested the defendant as an unlicensed driver because he did not possess a driver's license. Prior to defendant being deposed he was deported to France.
Plaintiff contends the accident occurred as he was changing lanes and the defendant's vehicle, which was allegedly traveling at an excessive rate of speed, failed to yield to the plaintiffs' vehicle, resulting in defendants' vehicle striking the plaintiffs' vehicle.
Plaintiff contends that as a result of the accident he sustained an injury to his right knee requiring a total knee replacement leaving him permanently disabled. His wife, plaintiff Josephine Squiccerini, brought a cause of action for loss of her husband's services.
PLAINTIFFS' MOTION AND DEFENDANTS' CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT ON LIABILITY
In support of the motion for summary judgment on the issue of liability, the plaintiff submits an affidavit from his counsel, Louis T. Cornachia III, Esq; a copy of the pleadings; a copy of the transcript of the examination before trial of each plaintiff; and a copy of the police accident report (MV-104).
The plaintiff, age 82, testified at his examination before trial that on the date of the accident, October 14, 2008, he went with a friend to Saint Vincent de Paul thrift shop which is located on the eastbound side of Jericho Turnpike in Garden City, to buy clothing. He left his car parked in front of the store. Plaintiff testified that in that area of Jericho Turnpike there are two driving lanes in each direction and one lane for metered parking. He stated that when he returned to his car and he was ready to pull out of his parking spot, he looked to see if there was traffic behind him and then he pulled out into the eastbound left lane. In that regard he testified:
"I pulled away from the curb, I went into the next lane and as I got into the next lane to go straight the vehicle that hit me was a truck, some kind of a truck, a Ford truck."
He stated that his vehicle was struck approximately one minute after his vehicle moved into the left lane. When asked if was attempting to make a U-turn to go westbound on Jericho Turnpike he answered, "No." He stated that upon impact his right knee hit the dashboard.
In his affirmation in support of the motion for summary judgment on the issue of liability, plaintiff's counsel states that the plaintiff is entitled to summary judgment as he testified at his deposition that he was lawfully proceeding on Jericho Turnpike after pulling out of his spot when his vehicle was struck by defendant's vehicle. Counsel contends that his client was free from negligence and that the accident would not have happened but for the negligence of the defendant who was unlicensed and was operating his vehicle in violation of VTL § 509.1, which prohibits the operation of a motor vehicle by an operator who is unlicensed. Counsel also alleges that the defendant was speeding.
In order to succeed on a motion for summary judgment it is necessary that the movant tender evidentiary proof in admissible form, sufficient to establish his cause of action so as to warrant the court, as a matter of law, directing judgment in his favor ( Zuckerman v New York, 49 NY2d 557; CPLR 3212). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers ( Winegrad v New York Univ. Med. Ctr., 64 NY2d 851). Once a prima facie showing has been made, the opponent is required to lay bare its proof in admissible form and to demonstrate the existence of a triable issue of fact ( Zuckerman, supra.). "Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" (id.).
The defendant, who was arrested at the scene of the accident and subsequently deported did not appear for an examination before trial. However, in opposition to the motion, defendant's attorney, Vincent J. Nofi, Esq., submits an affidavit dated June 25, 2010 from an independent witness, Kevin Donegan, age 31, who states that he was driving westbound on Jericho Turnpike when he witnessed the accident at the time and place in question. He states in relevant part:
"I saw two guys get [into] a small sedan on Jericho Turnpike that was pointed eastbound. They made a U-turn on Jericho to go westbound. They made the U-turn in front of me. They went in front of a white van going the other way on Jericho Turnpike. The van could not avoid hitting them. The van had a green light. The van was not going fast. The cause of the accident was the sedan making an illegal U-turn into oncoming traffic."
Defendant's counsel states that on the basis of this affidavit, summary judgment should be denied to the plaintiff and granted to the defendant. Counsel contends that the affidavit stating that the plaintiff made an illegal U-turn into oncoming traffic was the sole proximate cause of the accident.
In cases alleging negligence as the result of a motor vehicle accident, a plaintiff establishes prima facie entitlement to summary judgment by demonstrating that the defendant was negligent and that said negligence was the proximate cause of the accident (see Bodner v Greenwald, 296 AD2d 564 [2nd Dept. 2000]); Maxwell v Land-Saunders, 233 AD2d 303 [2d Dept. 1996]).
Pursuant to VTL § 1128:
"Whenever any roadway has been divided into two or more clearly marked lanes for traffic the following rules in addition to all others consistent herewith shall apply:
(a) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety."
Here, the plaintiff was required, pursuant to VTL § 1128 to yield the right of way when he pulled his vehicle from the parking space into a lane of moving traffic and then changed from one lane into another. In his deposition he testified that before he moved the vehicle he looked in his side view mirror and looked over his shoulder and did not see any traffic. Thus, the plaintiff made a sufficient showing that prior to moving his vehicle from the parking spot he ascertained that it was safe to do so (Cf. Flores v City of New York , 66 AD3d 599 [1st Dept. 2009]; Calandra v. Dishotsky, 244 AD2d 376 [2d Dept. 1997]).
However, the plaintiff failed to establish, prima facie that the defendant's negligence was the sole proximate cause of the accident. Counsel's conclusion and the allegation in the bill of particulars that the defendant was speeding is not supported by any documentary evidence or testimony in the record. Affirmations from attorneys having no personal knowledge of the facts are not evidence and offer nothing more than hearsay. Further, contrary to the plaintiff's contention, the courts have consistently held that operating a motor vehicle without a license is not negligence per se (see Dance v Town of Southampton, 95 AD2d 442 [2d Dept. 1983]; Hanley v Albano, 20 AD2d 644 [2d Dept. 1964]). The absence or possession of a driver's license relates only to the authority for operating the vehicle and not to the manner thereof (see Firmes v. Chase Manhattan Automotive Fin. Corp , 50 AD3d 18 2d Dept. 2008]; Dalal v. City of New York, 262 AD2d 596 [2d Dept. 1999]; Almonte v Marsha Operating Corp., 265 AD2d 357 [2d Dept. 1999][the fact that [defendant] was unlicensed failed to demonstrate that he was negligent, as the absence or possession of a driver's license relates only to the authority for operating a vehicle, and not to its manner of operation]).
Accordingly, this court finds that the plaintiff failed to establish prima facie that the defendant's actions were negligent or that they were the proximate cause of the accident and therefore, the plaintiff's motion for summary judgment on the issue of liability is denied.
The defendant cross-moves for summary judgment on the ground that an independent witness states in an affidavit that the plaintiff made an illegal U-turn into oncoming traffic and that the defendant could not avoid the accident. The witness stated that he believed that the plaintiff's attempt to make a U-turn was the cause of the accident. However, the plaintiff, in his deposition, specifically denied that he was making a U-turn. As the defendant in his sworn testimony disputes the version of events as described by the independent witness, this court finds that there is a material issue of fact with regard to the causation of the accident herein precluding an award of summary judgment to the defendant on his cross-motion.
PLAINTIFFS' MOTION TO STRIKE THE DEFENDANTS' ANSWER FOR FAILING TO COMPLY WITH DISCOVERY
Plaintiff moves for an order striking the defendants' answer on the ground that the defendant has failed to respond to demands for discovery and inspection or to appear for a deposition. As stated above the defendant was deported and as such cannot appear for a deposition. Since he was deported this court finds that this defendant's conduct in not appearing for depositions is not wilful and contumacious and therefore the plaintiff's motion to strike the defendant's answer is denied (see Cobenas v Ginsburg Dev. Cos., LLC , 74 AD3d 1269 [2d Dept. 2010]; Patel v. DeLeon , 43 AD3d 432 [2d Dept. 2007]).
However, the defendant shall be precluded from offering evidence on his own behalf at trial unless he appears for an examination before trial and responds to plaintiffs demands for discovery and inspection (see Williams v. Ryder TRS Inc. , 29 AD3d 784 [2d Dept. 2006; Mermelstein v. Kalker, 294 AD2d 413 [2d Dept. 2002; Solomon v. Horie Karate Dojo, 283 AD2d 480 [2d Dept. 2001]).
In any event, this Court notes that by order of Justice Weinstein dated February 18, 2011, this matter has been scheduled for an inquest on March 10, 2011 based upon defendant's failure to appear in the Pretrial Conference Part on February 18, 2011.
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT ON THE ISSUE OF PHYSICAL INJURY
Plaintiff moves for summary judgment on the ground that plaintiff who is alleged to have had required a total right knee replacement as a result of the accident has suffered permanent loss of use of a body, organ, member or system as well as a permanent consequential limitation of a body organ or member and a significant limitation of use of a body function or system and as such, the injury constitutes a serious injury pursuant to New York State Insurance Law § 5102(d). In support of the motion the plaintiff has annexed the affirmed medical report of Dr. Margulies, who states that as a result of the accident the defendant underwent a right total knee replacement on November 2, 2009 and that he has no functional disability at the present time. The report of Dr. Loona, the orthopedic surgeon who performed the surgery, also stated that the knee replacement was a result of the accident and that the plaintiff still has slight weakness in the leg as a result of the surgery.
In opposition, the defendant contends that they cannot adequately respond to the motion as the plaintiff has failed to appear for a physical examination by their independent orthopedic surgeon on three separate occasions although appointments had been scheduled.
Accordingly, although the plaintiff's physicians show that the knee replacement was casually connected to the accident, the defendants' have not had an opportunity to rebut the findings as the plaintiff has not appeared for a medical examination. Therefore, the motion is denied (see Pampris v. Egnasher , 20 AD3d 746 [3rd Dept. 2005]).
DEFENDANTS' MOTION TO DISMISS FOR PLAINTIFF'S FAILURE TO APPEAR FOR A PHYSICAL EXAMINATION
Defendant's motion to strike the plaintiffs' complaint for failure to appear for an independent medical examination is granted only to the extent that plaintiff is directed to appear for an examination with the defendants' physician within 15 days of the date of this order.