Opinion
Index No. CV-020219-19/QU
03-01-2022
ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY as Subrogee Miller, Plaintiff(s), v. DURA ; Rigo Limo-Auto, Defendant(s).
Plaintiff's counsel: Law Offices of Karen L. Lawrence, 878 Veterans Memorial Highway, Suite 100, Hauppauge, NY 11788 Defendants’ counsel: Baker, McEvoy, Morrissey & Moskovits, 1 MetroTech Center, 8th Floor, Brooklyn, NY 11201
Plaintiff's counsel: Law Offices of Karen L. Lawrence, 878 Veterans Memorial Highway, Suite 100, Hauppauge, NY 11788
Defendants’ counsel: Baker, McEvoy, Morrissey & Moskovits, 1 MetroTech Center, 8th Floor, Brooklyn, NY 11201
Wendy Changyong Li, J.
I. Papers
The following papers were read on Plaintiff's motion for summary judgment on Defendant's liability:
Papers/Numbered
Plaintiff's Notice of Motion and Affirmation in Support dated February 13, 2020 ("Motion ") and stamped filed with the court on February 28, 2020. 1
Defendant's Amended Affirmation in Opposition dated January 21, 2021 ("Opposition ") and electronically filed with the court on the same date. 2
II. Background
In a summons and complaint filed on June 5, 2019, Plaintiff commenced action against Defendants to recover a total of $4,275.49 in property damage sustained to the vehicle of its subrogor Miller (see Motion, Aff. Of Kelly, Ex. A). Plaintiff moved for summary judgment on the issue of Defendants’ liability. Defendants opposed Plaintiff's Motion. This Court attempted unsuccessfully to schedule oral argument and a settlement conference several times after this matter was assigned to this Court for determination.
III. Discussion and Decision
Equitable subrogation allows an insurer to stand in its insured's shoes to seek indemnification from third parties whose wrongdoing caused a loss for which the insurer must reimburse (see Millenium Holdings LLC v Glidden Co. , 27 NY3d 406, 414 [2016] ; American Scientific Light. Corp. v Hamilton Plaza Assoc. , 144 AD3d 614, 615 [2d Dept 2016] ). CPLR 3212 provides that "a motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions" ( CPLR 3212[b] ). "Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" ( Zuckerman v. City of New York , 49 NY2d 557, 562 [1980] ). A motion for summary judgment "shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party" ( CPLR 3212[b] ; Zuckerman v. City of New York , at 562, see GTF Mktg. v Colonial Aluminum Sales , 66 NY2d at 968 ).
In order to prevail on a motion for summary judgment on liability, Plaintiff need only establish Defendants’ breach of a duty owed to Plaintiff and that the breach was a proximate cause of Plaintiff's injury ( Shah v MTA Bus Company , 201 AD3d 833, 2022 NY Slip Op 00327 *2 [2d Dept Jan. 19, 2022]; Sapienza v Harrison , 191 AD3d 1028, 1029 [2d Dept 2021] ; Poon v Nisanov , 162 AD3d 804, 807 [2d Dept 2018] ). Plaintiff's freedom from comparative negligence no longer needs to be established ( Rodriguez v City of New York , 31 NY3d 312, 324-25 [2018] ; Shah v MTA Bus Company , 2022 NY Slip Op 00327 * 2; MacKay v Paliotta , 196 AD3d 552, 558-59 [2d Dept 2021] ; Sapienza v Harrison , 191 AD3d at 1029 ; Poon v Nisanov , 162 AD3d at 807 ). Here, in an affidavit sworn November 4, 2019, Miller attested that he "was involved in an accident eastbound on the Grand Central Parkway, at or near Northern Boulevard" and that he "was traveling straight when the Defendant vehicle attempted an unsafe lane change, sideswiping [his] 2013 Honda Accord, causing damage" (Motion, Kelly Aff., Ex. D at 1-2). Since Miller failed to describe other relevant facts, including the vehicles’ speed and respective positions or how Defendants’ lane change was unsafe, his affidavit failed to establish Defendants’ negligence ( Kanfer v Wong , 145 AD3d at 987 ; Wilson v Wei Cheng , 98 AD3d 971, 972 [2d Dept 2012], see Ashby v Estate of Encarnacion , 178 AD3d 763, 764 [2d Dept 2019] ; Gute v Grease Kleeners, Inc. , 170 AD3d 676, 677 [2d Dept 2019] ).
Plaintiff also presented a police accident report. Police accident reports contain two layers of hearsay which must be overcome in order for the reports to be admissible. First, the report itself must be rendered admissible through certification, which must establish that it was made in the regular course of business, that it was the regular course of the business to make it, and that it was made at the time of the act, transaction or occurrence or a reasonable time thereafter ( Yassin v Blackman , 188 AD3d 62, 65-66 [2d Dept 2020] ). Secondly, statements recorded in the police accident report must fall within a hearsay exception for the statements to be admissible. In our instant case, the police accident report was inadmissible because it was neither certified ( Yassin v Blackman , 188 AD3d at 66 ; Progressive Advanced Ins. Co. v McAdam , 139 AD3d 691, 692 [2d Dept 2016] ; Nationwide Gen. Ins. Co. v Bates , 130 AD3d 795, 796 [2d Dept 2015] ), nor sworn or supported with the affidavit of a witness with personal knowledge of the facts ( LMS Med. Care v American Tr. Ins. Co. , 30 Misc 3d 137[A], 2011 NY Slip Op 50195[U] *1 [App Term 2d Dept 2011], see Yassin v Blackman , 188 AD3d at 66 ). As such, "the report and its contents constitute inadmissible hearsay" ( Yassin v Blackman , 188 AD3d at 66 ).
Plaintiff cited cases which dealt only with the admissibility of statements in a police accident report, which are not relevant because the admissibility of the report itself has not been established (see Bravo v Vargas , 113 AD3d 579 [2d Dept 2014] ; Jackson v Donien Trust , 103 AD3d 851 [2d Dept 2013] ; Scott v Kass , 48 AD3d 785 [2d Dept 2008] ; Kemenyash v McGoey , 306 AD2d 516 [2d Dept 2003] ; Guevara v Zaharakis , 303 AD2d 555 [2d Dept 2003] ). Plaintiff also cited Gezelter v Pecora (129 AD3d 1021 [2d Dept 2015] ), which the Appellate Division, Second Department has specifically abrogated ( Yassin v Blackman , 188 AD3d at 67 ). Even were the court to consider the inadmissible police accident report, it would have demonstrated the existence of factual issues because the contradictory statements of Miller and Defendant Dura were both recorded in the report (see Duvalsaint v Yupe-Garcia , 169 AD3d 864, 865 [2d Dept 2019] ). Although plaintiff admitted that the police accident report was inadmissible, citing Zuilkowski v Sentry Ins. (114 AD3d 453, 454 [2d Dept 1985] ), Plaintiff contended that inadmissible evidence may be considered in a summary judgment motion. Unlike our instant case, that case held that inadmissible evidence may be considered in opposing a summary judgment motion.
Since Plaintiff failed to make a prima facie showing of entitlement to judgment as a matter of law, the Court denies Plaintiff's Motion without considering Defendants’ Opposition (see Pullman v Silverman , 28 NY3d 1060, 1062 [2016] ; Alvarez v Prospect Hosp. , 68 NY2d 320, 324 [1986] ).
IV. Order
Accordingly, it is
ORDERED that Plaintiff's Motion for summary judgment is denied without prejudice.
This constitutes the court's Decision and Order