Opinion
40598.
Decided January 24, 2011.
VITANZA, DiSTEFANO DEAN, LLP, By: Thomas A. Vitanza, Esq. Attorneys for Plaintiffs, Norwich, New York.
LYNCH LAW OFFICE, By: Andrew J. Schwab, Esq., Attorneys for defendant Cincinnatus Central School District, Syracuse, New York.
FRANK LOSURDO, ESQ., Attorney for defendants Guy R. Rundell, Sr. and Guy R. Rundell, Jr., Ithaca, New York.
PETRONE PETRONE, P.C., By: Janet F. Neumann, Esq. Attorneys for the defendant Cincinnatus, Utica, New York.
Plaintiff Jacob Brown (herein plaintiff, his father sues derivatively) commenced this action for injuries that he sustained on September 16, 2006, when he fell from the open bed of a pickup truck in which he rode while participating in the Cincinnatus Corn Festival Parade. Defendants The Cincinnatus Corn Festival (Corn Festival), Cincinnatus Central School District (CCSD), and Guy Rundell, Jr. each move for summary judgment. Plaintiff moves, pursuant to CPLR 3116(a) and CPLR 2004, for an order permitting him to correct his deposition testimony and to compel defendants to accept the revised testimony.
The action was discontinued against defendant Town of Cincinnatus, pursuant to stipulation of the parties filed on February 10, 2009. The court has been advised by his counsel that defendant Guy Rundell, Sr. commenced a chapter 7 bankruptcy proceeding ( see United States Bankruptcy Court for the Northern District of New York Case Number 09-31511-5-mcr), which stays continuation of this action against him ( see 11 USC § 362[a][1]).
BACKGROUND
The Cincinnatus Corn Festival is a community event, typically held annually, which includes a parade and is organized by a volunteer committee comprised of community members (Affirmation of Janet F. Neumann, Esq. dated April 28, 2009 [Neumann Affirmation], Exhibit G [Transcript of Examination Before Trial of Nancy Schreiber; herein Schreiber EBT Transcript], pp. 7 — 8; Affidavit of Nancy Schreiber, sworn to April 29, 2009 [Schreiber Affidavit], ¶¶ 4 — 5). Plaintiff — then seventeen years old — had participated in the parade by riding in the open bed of a pickup truck owned by Guy Rundell, Sr., and driven in the parade by Guy Rundell, Jr. (Rundell) as the entry of the Senior Class at Cincinnatus High School. The parade began at the intersection of Routes 23 and 26 and proceeded for approximately one mile to the Cincinnatus High School located on Cincinnatus Road. From there, the parade organizers directed the participants to Deerpath Lane (Schreiber EBT Transcript, pp. 8 — 11), a cul-de-sac which intersects with Cincinnatus Road a short distance north of the High School (Neumann Affirmation, Exhibit F). Plaintiff fell from the pickup truck as it made a right-hand turn while on Deerpath Lane.
While there may be conflicting testimony regarding whether plaintiff was "horsing around" by playing with cornstalks outside of the vehicle when the accident occurred, there is no dispute regarding the location of plaintiff within the vehicle immediately prior to his fall. All of the witnesses who testified to seeing plaintiff immediately before he fell stated that he was seated at an elevated location on the driver's side of the vehicle — on the top of a toolbox or on the wheel well — with part of his body hanging over the edge.
Neumann Affirmation, Exhibit L (Transcript of Examination Before Trial of Steven VanCise; herein VanCise EBT Transcript), pp. 15, 27 — 29, 49 — 51; Neumann Affirmation, Exhibit M (Transcript of Examination Before Trial of Walter Zering; herein Zering EBT Transcript), pp. 12, 19 — 22, 41 — 42; Neumann Affirmation, Exhibit O (Transcript of Examination Before Trial of Linda Peck), pp. 27 — 28, 36 — 37. The deposition testimony of the witnesses is corroborated by the supporting depositions that each gave to a police officer immediately following the accident — under penalty of perjury with the warning set forth in Penal Law § 210.45 ( see Neumann Affirmation, Exhibit F) — which are properly considered because plaintiff failed to raise any objection thereto ( see Sam v Town of Rotterdam, 248 AD2d 850 [1998], lv denied 92 NY2d 804 [1998]; see also Daus v Cassavaugh , 17 AD3d 837 [2005]; Scudera v Mahbubur, 299 AD2d 535 [2002]).
DEFENDANTS' MOTIONS
Each of the moving defendants seeks summary judgment on the basis that plaintiff's assumption of the risk of participating in the parade by riding in the back of the pickup truck bars recovery against them. The doctrine of primary assumption of the risk — which has survived adoption by New York State of the doctrine of comparative fault — provides that a voluntary participant in a sport or recreational activity assumes the risks inherent in the activity ( Ananad v Kapoor, ___ NY3d ___, 2010 NY Slip Op 09380; Trupia v Lake George Cent. School Dist. , 14 NY3d 392 ). Here, by voluntarily participating in a recreational activity — namely, riding in the rear of a pickup truck used as an exhibit in a community parade — plaintiff voluntarily assumed all risks that were "known, apparent or reasonably foreseeable consequences of the participation" ( Martin v State, 64 AD3d 62, 63 — 64 [2009], lv denied 13 NY3d 706, quoting Turcotte v Fell, 68 NY2d 432, 439). Accordingly, the extent of any duty owed plaintiff by any of the defendants was limited to the exercise of ordinary care to protect him only against unusual or unreasonably increased risks ( id., Williams v Clinton Cent. School Dist. , 59 AD3d 938 ).
The recreational activity at issue — the parade — had not yet ended when plaintiff was injured. The parade organizers directed all parade participants to Deerpath Lane for the purpose of safely disbanding in an area with little to no traffic (Schreiber EBT Transcript, pp. 8 — 11). The pickup truck was still on Deerpath Lane in line with the other parade entries. It had not been parked and no riders had disembarked prior to the incident ( cf. Monacelli v Armstrong, 64 AD2d 428 [1978], affd for reasons stated below 49 NY2d 971 [1980] [parade organizers owed no duty to the plaintiff in connection with injuries sustained in a collision with a horse which had been exhibited in the parade, where the collision occurred more than three miles from the acknowledged end of the parade route and more than 15 minutes after the parade had concluded]).
Here, the risk of falling from the open bed of pickup truck while participating in the parade was open and obvious. The object of riding on a float in a parade is to be seen by the spectators. To be seen while riding in the rear of pickup truck requires either that exhibitors stand or that they be seated at a level above the floor of the cargo bed. It is commonly known, and, therefore, reasonably foreseeable, that individuals riding in such positions expose themselves to the risk that normal operation of the vehicle by a driver — including starts, stops or turns — may cause them to fall. In addition, defendants have established that this specific risk was well known to plaintiff — then age 17 — in light of his testimony that he rode on public roads in the cargo area of his father's pickup truck prior to the parade; that on such occasions, his father directed that he sit down on the floor of the pickup bed with his back to the rear of the cab; and that he knew that the danger of riding in the rear of a pickup truck is significantly greater for riders not seated on the floor in the fashion directed by his father (Affirmation of Andrew J. Schwab, Esq. dated June 2, 2009, Exhibit H [Transcript of Examination Before Trial of Jacob Brown; herein Brown EBT Transcript], p. 170 — 171). Nonetheless, it is undisputed that he was riding in an elevated position on the side of the truck immediately prior to his fall ( see Donovan v West Indian Day Carnival Assoc., Inc., 6 Misc 3d 1016[A], 2005 NY Slip Op 50052[U], p. *18 [plaintiff's 17 year old decedent was old enough to appreciate the dangers associated with walking and/or dancing in close proximity to a parade float and, therefore, voluntarily assumed the risk of being injured by an obvious dangerous condition]). Such evidence constitutes a prima facie showing that defendants are entitled to summary judgment based on the doctrine of primary assumption of the risk ( see Martin; Williams; Musante v Oceanside Union Free School Dist. , 63 AD3d 806 ).
In opposition, plaintiff argues that there is testimony which shows that Rundell may have started quickly, thereby contributing to his fall. However, even viewed in the light most favorable to him, such testimony is insufficient to create an issue of fact. Those riding in a vehicle in a position where they may be seen by parade spectators assume the inherent risk that ordinary vehicle movement — including starts and turns — may cause them to fall. Although offering opinions that a quick start may have contributed to plaintiff's fall, none of the witnesses testified to specific facts which show that Rundell operated the vehicle in a manner that was sufficiently intentional or reckless so as to expose plaintiff to risks beyond the inherent risk of falling as result of ordinary vehicular movement ( see Anand v Kapoor; cf. Clauss v Bush, ___ AD3d ___, 2010 NY Slip Op 09312 [plaintiff submitted evidence of specific reckless conduct by defendant that exposed her to a risk over and above the inherent risks that she assumed by skiing]). In fact, their testimony is consistent with ordinary vehicle operation and the undisputed facts that Rundell had been traveling on Deerpath Lane at the same speed as the other parade participants — between 5 and 10 miles per hour — that the truck was stopped at an intersection on Deerpath Lane immediately prior to the incident, that plaintiff fell as Rundell started the vehicle and made a right turn, and that Rundell was able to stop the vehicle immediately after plaintiff fell.
Van Cise testified that Rundell may have started a "little bit" too fast and that he was unsure as to whether he felt a "little jerk" as they made the turn (VanCise EBT Transcript, pp. 16, 18 — 19, 35, 39, 41 — 42). Plaintiff's brother testified to a "small jolt" or "nudge," which caused him to move back in the passenger seat only an inch or two (Neumann Affirmation, Exhibit N [Examination Before Trial of Jonathon Brown], pp. 23, 31 — 32). Zering provided no specific facts regarding the start (Zering EBT Transcript, pp. 19, 33 — 39).
Accordingly, defendants' motions must be, and hereby are, granted. The complaint, and all cross-claims, are dismissed against Corn Festival, CCSD and Rundell, with prejudice. In light of the determination that plaintiff's recovery is barred by the doctrine of primary assumption of the risk, defendants' remaining arguments have not been considered.
PLAINTIFF'S MOTION
At the beginning of plaintiff's examination before trial on November 18, 2008, the parties stipulated to waive filing and signing of his deposition. On May 20, 2009 — over six months after his deposition was completed and nearly three weeks after Corn Festival's motion for summary judgment was served upon his attorneys — plaintiff sent errata sheets to defendants' counsel, by which he proposed to make substantive changes to his testimony. Counsel for defendants promptly rejected the proffered errata sheets as untimely.
At his deposition, plaintiff testified that he possessed an independent recollection of the accident, including a memory of having been seated on the toolbox, while on Deerpath Lane immediately prior to the accident (Brown EBT Transcript, p. 184), which he now seeks to replace with an explanation that he has no recollection of the relevant events of September 16, 2006 and that his original deposition testimony was given due to the fatigue and pressure of being deposed.
CPLR 3116(a) provides that changes may be made to deposition testimony more than sixty days after submission of the deposition to the witness only upon a showing of good cause for the delay ( see Zamir v Hilton Hotels Corp., 304 AD2d 493). Here, plaintiff's counsel alleges — in conclusory fashion — that plaintiff's delay was "occasioned by our office being located in Norwich, New York, lead counsel for the plaintiff being located in Virginia, the plaintiff's father residing in Cincinnatus, and the plaintiff being at college in Cortland" (Affidavit of Aaron A. Dean, Esq., sworn to May 28, 2009, ¶ 10). However, he fails to explain how those simple facts constitute good cause for the delay for plaintiff's review or correction of his deposition testimony, especially in light of the relative proximity of Norwich, Cincinnatus, and Cortland and the fact that the typical college schedule provides for an extended break during the relevant time period.
Moreover, while a court has the inherent power to permit changes to a deposition transcript even where the proper procedure was not followed, leave to permit late correction of deposition testimony should be denied where, as here, the corrections are furnished only in response to a summary judgment motion ( see Zamir, 304 AD2d 493; Perez v Mekulovic , 13 AD3d 158 ; see also Prunty v Keltie's Bum Steer, 163 AD2d 595; Marzan v Persaud , 29 AD3d 652 ; cf. Keenan v Munday, ___ AD3d ___, 2010 NY Slip Op 09322 [trial court did not err in exercising its discretion to permit correction of plaintiff's deposition testimony that did not appear to be "contrived solely in an effort to resist [defendant's] motion for summary judgment"]; Heliodore v State of New York, 305 AD2d 708 [in light of plaintiff's attempts to timely correct his deposition testimony, corrections were properly permitted at trial that took place within the 60-day correction period]; Binh v Bagland USA, 286 AD2d 613 [facts alleged in errata sheet that was furnished seven months prior to defendant's summary judgment motion were properly considered]).
Accordingly, plaintiff's motion is denied. However, this decision shall not be construed to bar plaintiff from testifying at any trial in this action as to the facts contained in the proposed errata sheets; that such testimony may be at odds with his original deposition raises only an issue of credibility ( see Keenan; Natale v Woodcock , 35 AD3d 1128 ; Zamir, 304 AD2d at 494 [party who fails to make changes in compliance with CPLR 3116(a) "is perhaps best left to confront the discomfort of cross-examination should his live testimony at the trial differ in some significant particular from the unaltered deposition"] [quotation omitted]).
This decision constitutes the order of the court. The transmittal of copies of this decision and order by the court shall not constitute notice of entry.
The following documents were filed with the Clerk of the County of Cortland:
— Notice of Motion by defendant The Cincinnatus Corn Festival dated April 30, 2008 [9]; Attorney's Affirmation of Janet F. Neumann, Esq., dated April 28, 2009, with attached Exhibits A-R;
— Affidavit of Nancy Schreiber sworn to April 24, 2009;
— Affidavit in Opposition to Motion for Summary Judgment by Hugh Brown sworn to May 26, 2009;
— Notice of Motion by plaintiff dated May 28, 2009; Affidavit in Support of Motion by Aaron A. Dean, Esq., sworn to May 28, 2009, with attached Exhibits A-B;
— Attorney's Reply Affirmation from Janet F. Neumann, Esq., dated June 2, 2009;
— Notice of Cross-Motion by defendant Cincinnatus Central School District dated June 2, 2009; Attorney Affirmation of Andrew J. Schwab, Esq., dated June 2, 2009, with attached Exhibits A-S;
— Attorney's Affirmation for plaintiff's motion from Janet F. Neumann, Esq., dated June 17, 2009, with attached Exhibits A-C;
— Attorney's Affirmation for Cincinnatus Central School District from Janet F. Neumann, Esq., dated June 17, 2009;
— Attorney Affirmation of Thomas C. Vitanza, Esq., dated June 22, 2009;
— Notice of Cross Motion by defendant Guy Rundell, Jr., dated June 24, 2009; Attorney Affirmation in Response to All Pending Motions and in Support of Rundell's Cross Motion For Summary Judgment by Frank Losurdo, Esq., dated June 24, 2009, with attached Exhibit A;
— Original Decision and Order dated January 24, 2011.