Opinion
Index No. 522691/18 Motion Sequence No. 3
01-06-2022
Woody Dalrymple, Plaintiff, v. Roman Morocho and Aggregate & Cemrnt Trucking, LLC: Defendants.
Unpublished Opinion
PRESENT: HON. WAVNY TOUSSAINT, Justice.
HON. WAVNY TOUSSAINT, Justice.
The following e- filed papers read herein: NYSCEF Doc Nos.
Notice of Motion/Order to Show Cause/ Petition./Cross Motion and Affidavits (Affirmations) Annexed ____________ 46 - 54
Opposing Affidavits (Affirmations) ____________ 58-66
Reply Affidavits (Affirmations) ____________ 70 - 72
Other (Letters from Counsel) Sur-replies ____________ 73-74
Upon the foregoing e-filed papers, defendant Aggregate &Cement Trucking, LLC (hereinafter Aggregate) moves for an order pursuant to CPLR §3211 (a) (5) dismissing plaintiffs complaint on the basis that it is time-barred under CPLR § 214 (5) (Seq 003). P la int i ff oppose s th is motion.
Background Facts and Procedural History
This is a lawsuit for personal injuries allegedly sustained by the plaintiff as a result of a motor vehicle accident that occurred on September 23, 2016 at approximately 10:00 a.m. on Irving Avenue, at or near 31s intersection with Willoughby Avenue, Brooklyn, New York. Plaintiff, Woody Dalrymple (plaintiff), alleges that immediately prior to his accident, he was proceeding by bicycle in the marked bicycle lane on Irving Avenue, approaching the intersection with Willoughby Avenue. According to the plaintiff, a large truck rolled past the stop sign on Willoughby Avenue. causing plaintiff to believe that it was not going to stop. In an attempt to avoid a collision with the truck, the plaintiff moved to the right, causing him to collide with the vehicle being operated by defendant Roman Morocho. The plaintiff was knocked off his bicycle and sustained injuries. It is undisputed that the driver of the dry-bulk tanker truck did not leave his personal identifying information with plaintiff or Morocho, however, the reason for not doing so is disputed by plaintiff and ACT as set forth below.
On November 9, 2018, plaintiff commenced the instant action by the filing of a summons and verified complaint against Morocho anti defendants, "John Doe" and Cowan Systems, LLC (hereinafter Cowan). The complaint alleges that Cowan w as the owner and "John Doe" was the operator of the truck in question.
On April 29, 2019, defendant Morocho moved for summary judgment, alleging defendant had no liability for the happening of the accident. By order dated October 9, 2019, this court granted defendant's motion, as the opposition submitted was insufficient as a matter of law. The action was severed and was continued against the remaining defendants. On September 18, 2020, plaintiff filed a motion, seeking to amend the complaint "to name a previously unidentified- party, sued as John Doe. Plaintiff alleges that the identity of the owner of the truck involved wax determined immediately prior to making the application to amend. Pursuant to order dated December 30, 2020, the plaintiff's motion was granted, and an amended complaint was filed. The amended complaint adds Aggregate as a defendant and removes Cowan Systems LLC and John Doe as defendants. On March 1, 2021, Aggregate filed its verified answer asserting the affirmative defense that action is time-barred because it was not commenced within the applicable three-year statute of limitations pursuant to CPLR § 214 (5).
Motion to Dismiss:
Aggregate now moves lo dismiss plaintiffs complaint, pursuant to CPLR § 3211 (a) (5), on the grounds that the action is untimely, as the subject accident occurred on September 23, 2016, the statute of limitations expired on September 23, 2019 and action against it was not commenced until December 30, 2020.
In opposition to the motion, plaintiff contends that Aggregate should be estopped from asserting the statute of limitations as a defense because the operator of the truck fled the scene of the crash making it difficult to identify Aggregate as the proper defendant. In support, plaintiff proffers surveillance video from a nearby school which, according to plaintiff, depicts the Aggregate truck driver frantically making multiple "cuts" as it tries to extricate itself from the crash scene and flee before police arrive. In addition, plaintiff proffers his own affidavit attesting to his recollection that, after the crash, the truck and car drivers had an argument over who was responsible for the crash, but that neither driver spoke to him, nor did the truck driver identify himself (NYSCEF Doc, No. 59, ¶ 4). Instead, that the truck driver maneuvered the truck to complete his left turn onto Irving and left the scene (id. at ¶ 5).
Plaintiffs counsel also contends that he made diligent efforts to identify the truck including instituting a plenary action, pursuant to CPLR § 3102 (c), to obtain a copy of the school surveillance video - Woody Dalrymple v The City of New York, et. al, Kings County Supreme Court Index No. 158458/2016. That the video, however, was grainy making it hard to identify the truck. Between the video and plaintiffs limited recollection plaintiffs counsel states that it was believed that a logo matching that of Cowan was on the truck. Further, plaintiff counsel states that extensive Internet searches were conducted based on the video as well as personal visits to sand and concrete plants in Brooklyn and Queens following a suggestion by Cowan's general counsel regarding the type of truck see in the video.
Then, on September 15, 2020, plaintiffs counsel represents that, by pure happenstance, he saw a dry-bulk tanker truck closely resembling the vehicle seen in die surveillance video and, consequently, believed the correct operator of the dry-bulk truck to be Aggregate. Accordingly, the September 15, 2020 sighting of the Aggregate truck was the first time Aggregate could be identified as the truck involved in the accident. Three days later, on September 18, 2020, plaintiff moved for leave to amend the complaint and add Aggregate as a defendant in lieu of John Doe and Cowan. Said motion was subsequently granted by order of this court dated December 11, 2020.
In reply Aggregate proffers the affidavit of Pablo Sanchez (Sanchez), a commercial truck driver for Aggregate, who attests to operating a motor vehicle on Willoughby Avenue approaching its intersection with Irving Avenue when he witnessed an incident between a bicyclist and an SUV on Irving Avenue on September 23, 2016 (NYSCEV Doc. No. 71, ¶ 2). Sanchez states that he remained at the scene for an extended period of time and spoke with the responding police officers who told him to leave since they did not consider him to be involved (id. at ¶¶ 3,4), Sanchez further slates that he never prepared a company incident report regarding Dalrymple's accident because he was only a witness and did not cause the accident or flee the scene (id. at ¶ ¶ 5. 6). Aggregate also proffers the police accident report, contending that it corroborates Sanchez's affidavit. That the police report reflects that responding officers assigned number 14 to plaintiff, which corresponds in the key to pedestrian/bicyclist/other pedestrian error/confusion as an apparent contributing factor to the incident. And that the responding police officers did not assign any contributing factor to the incident to anyone else which is consistent with Sanchez's statement that the police did not consider him to be involved.
Finally, Aggregate also contends that a review of the surveillance video proffered by plaintiff confirms that Sanchez traveled slowly, came to a complete stop prior to the intersection, and remained at the accident scene for over 10 minutes. Defendant points out that the snivel] lance video submitted by plaintiff has a break in footage from the 10:05 minute mark to lire 10:45 minute mark. Thus, that said video cannot be relied upon in determining hew long Sanchez remained at the scene, whether he spoke with the police and was told by the police to leave, or whether he fled the scene as argued by plaintiff.
In response, plaintiff submits a letter in sur-reply. contending that Aggregate's reply contradicts its answer by acknowledging for the first time that its vehicle and driver were involved in the subject incident. Plaintiff contends that Ive should be given the opportunity to depose Sanchez to determine whether Sanchez in fact complied with Vehicle and Traffic Law (VTI.) § 600 (2) (a) or, as plaintiff contends and the video show's, Sanchez fled the scene without providing his and his employer's identification and insurance information to other plaintiff or the police. According to plaintiff, the video shows that Sanchez was only out of his truck for approximately one and a half minutes, hardly time to share his information with the two other parties involved in the crash or speak with police as claimed. Further, that the video does not show' the presence of a police officer or police vehicle, and that, in any event, Sanchez still has a duty under VTL § 6% (2) [a) to specifically identify himself to Moro cho and Dalrymple, which he did not do.
Objecting to plaintiffs submission of a sur-reply, Aggregate submits a letter arguing that plaintiff is not entitled to submit a sur-reply, as Sanchez's affidavit docs not constitute new' evidence because it was submitted in reply to plaintiffs affidavit and the surveillance video.
Discussion
As a preliminary mailer, the court will consider plaintiffs sur-reply as it addresses new, responsive evidence proffered by Aggregate in its reply (see Matser of Kennelly v Mobius Realty Holdings LLC, 33 A.D.3d 380, 381-82 [1st Dept 2006] [finding that an opportunity' for a sur-reply eliminates any prejudice where the court considers a claim or evidence offered for the first time in reply]), "To dismiss a cause of action pursuant to CPLR. 321 { (a) (5) on the ground that it is barred by the applicable statute of limitations, a defendant bears the initial burden of demonstrating, prim a facie, that the time within which to commence the action has expired" (U.S. Bank U.A. v Gordon, 158 A.D.3d 832, 834-835 [2d Dept 2018] [internal quotation marks omitted]). Here, Aggregate established, prim a facie, that the three-year statute of limitations had expired prior to the filling of this action against it. Th us, the burden shifted “to the plaintiff to raise a question of fact us to whether the statute of limitations is tolled or is otherwise inapplicable" (Collins Bros. Moving Corp, v Pierleoni, 155 A.D.3d 601, 603 [2d Dept 2017]).
hr New York, a defendant may be estopped from interposing a statute of limitations defense where the defendant's affirmative wrongdoing "produced the long delay between the accrual of the cause of action and the institution of the legal proceeding" (General Stencils v Chiappa, 18 N.Y.2d 125, 128 [1966]). Applying equitable estoppel to prevent a defendant from asserting the statute of limitations is rooted in the principle that "no man may take advantage of his own wrong" (id., citing Glus v Brooklyn Eastern Term., 359 U.S. 231,232-233 [19591).
Generally, "equitable estoppel will apply where plaintiff was induced by fraud, misrepresentation or deception to refrain from filing a timely action" ('Zumpano v Quinn, 6 N.Y.3d 666,674 [2006] (quoting Simcusid v Saeli, 44 N.Y.2d 442,449, 377 N.E.2d 713,406 N.Y.S.2d 259 [1978]). The plaintiff must demonstrate reasonable reliance on the defendant's misrepresentations (id). Moreover, a plaintiff must show subsequent and specific actions by defendants aimed to conceal the former tort which somehow' prevented plaintiff from timely bringing suit (id).
The instant action docs not present a situation where plaintiff was lulled into inactivity or a false sense of security by Aggregate's fraud or misrepresentation. Rather, plaintiff timely commenced suit but failed to timely name the correct defendant, a failure that plaintiff attributes to Sanchez fleeing the scene of the accident. While there is no case proffered by plaintiff applying equitable estoppel to similar factual circumstances, the court finds that leaving die scene of a motor vehicle accident that he or she is involved in, which is a violation of VTL § 600 (2) (a), amounts to an act of concealment that could preclude a statute of limitations defense (cf Sherrift v Pettiford, 172 A.D.2d 512,513 [2d Dept 1991] (holding that it party who fails to comply with VTL 505 (5), which requires that every motor vehicle licensee notify the Commissioner of Motor Vehicles of any change of residence within 10 days of the occurrence of the change, will be estopped from challenging the propriety of service made to the former address]).
Vehicle and Traffic Law § 606 (2) (a) provides, in pertinent part, that "[a]ny person operating a motor vehicle who, knowing or having cause to know that personal injury has been caused to another person, due to an incident involving the motor vehicle operated by such person shall, before leaving the place where the said personal Injury occurred, stop, exhibit his license and insurance identification card ... give his name, residence ... and [other enumerated] information ... to the injured party, if practical, and also to a police officer..
The video proffered by plaintiff does not conclusively establish that Aggregate's truck was involved in the subject accident or whether Sanchez left the scene before police could arrive, as contended by plaintiff, or whether Sanchez wailed for the police to arrive and was told to leave, as represented by Sanchez. Consequently, the issue of whether Aggregate should be estopped from asserting the statute of limitations as a defense involves a factual dispute requiring a trial (see General Stencils v Chiappa, 18 N.Y.2d at 125; see also Matter of Spewack, 203 A.D.2d 133, 134 [1st Dept 1994] [citations omitted]).
Conclusion
Accordingly, it is ORDERED that defendant Aggregate's motion to dismiss plaintiffs complaint as time-barred is denied. This constitutes the decision and order of the court.