Opinion
INDEX NO. 161860/2015 Third-Party Index No. 595998/2017
09-23-2019
TRACY TYLER, Plaintiff, v. THE MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION, JOHN DOE, ABC CORPORATION, Defendant. THE MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION Plaintiff, v. LUIS SANCHEZ, EXTASEA CAB CORP, TINA TAXI SERVICE, QUEENS MEDALLION BROKERAGE Defendant.
NYSCEF DOC. NO. 59 PRESENT: HON. ADAM SILVERA Justice MOTION DATE 07/12/2019, 07/12/2019 MOTION SEQ. NO. 002 002
DECISION + ORDER ON MOTION
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, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56 were read on this motion to/for JUDGMENT - SUMMARY.
Upon the foregoing documents, it is ordered that defendant Motor Vehicle Accident Indemnification Corporation's (hereinafter referred to as "MVAIC") motion for summary judgment of dismissal is denied for the reasons stated below.
Defendant MVAIC moves for summary judgment on liability and dismissing this action as against it. In support of its motion, defendant MVAIC proffers, inter alia, the deposition transcript of plaintiff and of third-party defendant Luis Sanchez. MVAIC argues that third-party defendant Sanchez is liable for the accident and that plaintiff has failed to establish liability on defendant MVAIC's part. According to defendant MVAIC, plaintiff was a pedestrian crossing the street between 23 Street and 24 Street on Second Avenue in Manhattan when the motor vehicle operated by defendant Sanchez suddenly backed up into plaintiff. Defendant argues that, as the subject accident was the fault of third-party defendant Sanchez, defendant MVAIC's motion for summary judgment of dismissal should be granted. Both plaintiff and third-party defendants oppose.
Preliminarily, the Court notes that after much litigation in a special proceeding, plaintiff was granted permission to sue defendant MVAIC. By decision dated January 21, 2015, Honorable Debra A. James referred this case to a special referee for a framed issue hearing, to hear and report, on whether Luis Sanchez and Tina Taxi Service, Inc. existed at the address listed in the police report. The hearing was held and both plaintiff and MVAIC participated. Following the hearing, the special referee reported that petitioner made a reasonable effort to ascertain whether Luis Sanchez and Tina Taxi Service, Inc. could be found at the address located on the police report, and recommended that Tina Taxi Service, Inc. and Luis Sanchez do not exist at the address listed on the police report. Judge James, by Decision and Order dated November 13, 2015, granted plaintiff's petition to sue defendant MVAIC. Judge James confirmed the report of the special referee, by Decision and Order dated February 16, 2016, finding that petitioner Tracy Tyler, in the special proceeding, demonstrated that Luis Sanchez and Tina Taxi Service, Inc. did not exist at the address provided in the police report. Subsequently, defendant MVAIC appealed both of Judge James November 13, 2015 and February 22, 2016 Decision and Orders, and on January 31, 2017 the Appellate Division, First Department affirmed both decisions. Thus, it is settled that defendant MVAIC is a proper party.
Here, defendant MVAIC moves for summary judgment dismissing this action against it, arguing that third-party defendant Sanchez is at fault for the accident such that the action must be dismissed against it. In the reply, defendant MVAIC argues that:
[i]n paragraph thirteen (13) of Plaintiff's Affirmation, a quote from the decision of Justice James stating that an action may be commenced against MVAIC. However, it is also stated '[f]inally, respondent may pursue its remedies against the actual driver and owner of the offending vehicle.' Thus, plaintiff was told to pursue an action against Luis Sanchez and Extasea Cab Corp., but elected not to. ...Plaintiff cannot argue prejudice of missing the three year statute of limitation because they were aware of the names of the known Defendants from the police report and Justice James advised that an action can be pursued against them. Plaintiff is now realizing the mistake that took place years ago and is asking this Court to forgive them at the cost and expense of MVAIC."Reply, ¶¶ 9 and 12.
It is well settled that summary judgment is a drastic remedy, only to be granted if the moving party sufficiently established that it is warranted as a matter of law. See Alvarez v Prospect Hosp., 68 NY2d 320, 324 (1986). "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case". Winegrad v New York University Medical Center, 64 NY2d 851, 853 (1985). "In determining whether summary judgment is appropriate, the motion court should draw all reasonable inferences in favor of the nonmoving party and should not pass on issues of credibility." Garcia v J.C. Duggan, Inc., 180 AD2d 579, 580 (1 Dep't 1992), citing Dauman Displays, Inc. v Masturzo, 168 AD2d 204 (1 Dep't 1990). As such, summary judgment is rarely granted in negligence actions unless there is no conflict at all in the evidence. See Ugarriza v Schmieder, 46 NY2d 471, 475-476 (1979).
Here, defendant MVAIC failed to meet its burden demonstrating entitlement to summary judgment. The Court notes that, defendant MVAIC's statement that third-party defendant Sanchez is liable for the accident is conclusory at best. A review of the evidence and the deposition transcripts reveal that issues of fact exist as to how the accident happened and who is liable for the accident. Plaintiff testified that he saw third-party defendant's vehicle pass him, looked both ways before crossing in the middle of the street, and then saw third-party defendant's vehicle backing up from the corner of his eye before he was struck. However, plaintiff's own deposition testimony concedes that he dashed across the street in the middle of the street. Third-party defendant Sanchez testified that he observed plaintiff prior to the accident, that he did not expect plaintiff to be close to the vehicle when he was reversing the vehicle, that he saw plaintiff running in between cars, and that plaintiff hit the vehicle with his hand whereupon third-party defendant Sanchez immediately stopped his vehicle. As issues of fact exist, summary judgment must be denied.
Moreover, the Court must note that it would be prejudicial to plaintiff to grant defendant MVAIC's motion. While the names of the third-party defendants were known to plaintiff, as they were listed on the police report, it has already been determined, and affirmed by the Appellate Division, First Department, that third-party Luis Sanchez and Tina Taxi Service, Inc. did not exist at the address listed on the police report. Thus, plaintiff had no one to sue except defendant MVAIC, and did so timely. Now, defendant MVAIC is arguing that, as third-party defendant Sanchez admits at his deposition that he was the driver of the offending vehicle, defendant MVAIC should be let out of the action. Notably, the third-party action was not commenced until December 2017, approximately two years after the statute of limitations had run. Furthermore, third-party defendant Sanchez's deposition was not held until January 2019, over three years after the statute of limitations ran.
Incredulously, defendant MVAIC argues that plaintiff was told to pursue an action against third-party defendant Luis Sanchez but chose not to. As noted above, plaintiff was unable to commence an action against the third-party defendants, as such defendants did not exist at the address listed on the police report. Moreover, the Court notes that defendant MVAIC has entirely misread Judge James' Decision and Order dated February 16, 2016. In such decision, Judge James confirmed the special referee's report and explicitly stated that "respondent may pursue its remedies against the actual driver and owner of the offending vehicle." Aff. in Opp., Exh. 6, Decision and Order dated February 16, 2016. The key word used by Judge James is "respondent". In the special proceeding, heard by Judge James, seeking leave to sue MVAIC, Tracy Tyler was the petitioner and MVAIC was the respondent. Thus, Judge James told defendant MVAIC, not plaintiff, that it could pursue an action against the driver and owner of the vehicle. As such, defendant MVAIC is utterly mistaken in arguing that plaintiff made a mistake in commencing this action against it, as it was the only defendant plaintiff could sue. Additionally, despite defendant MVAIC's unwarranted statement, plaintiff need not be forgiven for her alleged mistake at the cost of defendant MVAIC. It is unbelievable that the Court must waste its valuable resources in this action in order to remind defendant MVAIC that it is a non-profit organization created by statute for the sole purpose of protecting innocent victims, like plaintiff herein, of hit and run drivers or uninsured motorists. Defendant MVAIC is cautioned that further arguably frivolous motions may result in the appropriate sanctions. As to the instant motion, defendant MVAIC's motion for summary judgment is denied.
Accordingly, it is
ORDERED that defendant Motor Vehicle Accident Indemnification Corporation's motion is denied in its entirety; and it is further
ORDERED that all counsel shall appear for a previously scheduled compliance conference on October 18, 2019 at 9:30am in room 106 of 80 Centre Street, New York, NY; and it is further
ORDERED that within 30 days of entry, plaintiff shall serve a copy of this decision/order upon all parties with notice of entry.
This constitutes the Decision/Order of the Court. 9/23/2019
DATE
/s/ _________
ADAM SILVERA, J.S.C.