Opinion
30921/06.
Decided November 4, 2010.
Yohan Choi., 154-08 Northern Boulevard (Suite 2G), Flushing, New York, Attorney for Plaintiffs.
Brand, Glick Brand P.C., Garden City, New York, Attorney for defendants.
By notice of motion filed on March 17, 2010, under motion sequence number nine, defendants Charles W. D. Stephens (Stephens) and Arma Scrap Metal, Co., Inc. (Arma) move, pursuant to CPLR § 3212, for an order granting leave to file a late summary judgment motion and upon granting such leave for an order granting summary judgment on liability in their favor and dismissing the complaint.
On August 20, 2010, after oral argument, this court granted that part of the motion which sought leave to file a late summary judgment and reserved decision on the merits of the motion.
BACKGROUND
On October 2, 2006, plaintiffs' commenced the instant action by filing a summons and verified compliant with the Kings County Clerk's office. Defendants jointly interposed a verified answer with one counterclaim dated November 8, 2006. By stipulation of the parties, defendants counterclaim was withdrawn with prejudice. On February 27, 2009, a note of issue was filed.
Plaintiffs action is for damages due to personal injuries sustained as a result of a motor vehicle accident. Plaintiffs allege that on May 30, 2006, while Yeun Hee Hong was driving on the Long Island Expressway in her 2006 Toyota Camry with her two daughters, Sera and Semi, as passengers, a pieces of rubber came off a tire of a 1990 Mack truck (the subject truck) driven by Stephens and owned by Arma. The tire pieces struck the Camry and injured the plaintiffs. The subject truck had a front cab and a rear cargo bed. The cab had two tires, one on each side, and the bed had eight tires two on each of its four sides
MOTION PAPERS
Defendants' motion papers consists of an affirmation and a copy of the prior set of motion papers submitted under motion sequence number seven. The prior motion papers contains counsel's affirmation and fifteen annexed exhibits labeled A through O. Exhibit A is the summons and verified complaint. Exhibit B is defendants' answer. Exhibit C is plaintiffs' verified bill of particulars. Exhibit D is defendants' consent to change attorney dated November 5, 2007. Exhibit E is a stipulation of the parties to discontinue with prejudice defendants' counterclaim against plaintiff Yeun Hee Hong. Exhibit F is an illegible order of Justice Ellen Spodek. Exhibit G is the deposition of plaintiff Yeung Hee Hong conducted on February 4, 2008. Exhibit H is the deposition of Sera Eum, an infant, conducted on October 8, 2007. Exhibit I is the deposition of Semi Eum conducted on October 8, 2007. Exhibit J is the deposition of Charles W. D. Stephens, conducted on January 26, 2009. Exhibit K is the deposition of Dennis M. Goldberg, the president of Arma, conducted on January 26, 2009. Exhibit L is the New York State Department of Motor vehicle police accident report (MV-104) of the accident in question. Exhibit M is an affidavit of Ira Berger, the president of Eastern Tire and Battery Works. Exhibit N is an affidavit of Andres Fernandez, the principal of AF and JR Truck Repairs, Inc. Exhibit O is an invoice from AF and JR Truck Repairs, Inc dated January 3, 2006.
Plaintiffs do not oppose defendants' request for permission to file a late summary judgment motion but do oppose the underlying merits of the motion. Their opposition papers consists of an affirmation of counsel and a copy of their prior cross-motion submitted under motion sequence number seven. That cross-motion sought an order pursuant to CPLR § 3126 striking the defendants' answer as a sanction based on spoliation of evidence. Plaintiffs rely on the arguments contained in their prior cross-motion papers to oppose the instant motion and not for any affirmative relief. By order of this Court, dated December 11, 2009, plaintiff's cross-motion for an order striking the defendants' answer was denied. .
Defendants' submitted a reply to plaintiffs' opposition papers.
LAW AND APPLICATION
A motion for summary judgment may be granted only when there is no doubt as to the absence of any triable issue of material fact ( Kolivas v. Kirchoff , 14 AD3d 493 [2nd Dept. 2005]). "Issue finding, rather than issue determination is the court's function. If there is any doubt about the existence of a triable issue of fact, or a material issue of fact is arguable, summary judgment should be denied" ( Celardo v. Bell, 222 AD2d 547 [2nd Dept. 1995]). A party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact ( Alvarez v. Prospect Hosp., 68 NY2d 320; Napolitano v. Suffolk County Dept. Of Public Works , 65 AD3d 676 [2nd Dept., 2009]). Once the movant has met this burden, the burden then shifts to the party opposing the motion to demonstrate via admissible evidence the existence of a factual issue requiring a trial of the action ( Alvarez v. Prospect Hosp., supra; Zuckerman v. City of New York 49 NY2d 557, 560 [1980]). "As a general rule, a party does not carry its burden in moving for summary judgment by pointing to gaps in its opponent's proof, but must affirmatively demonstrate the merits of its claim or defense" ( See, Mennerich v. Esposito , 4 AD3d 399 [2nd Dept. 2004]).
In addition, the elements of a negligence claim are the existence of a duty, a breach of that duty, and damages proximately caused by that breach of duty ( See, Lapides v. State, 57 AD3d 83 [2nd Dept. 2008]). VTL § 375(35) requires that a motor vehicle be equipped with tires in safe operating condition based on standards prescribed by the New York State Commissioner of Motor Vehicle.
Furthermore, it is the duty of the owner and operator of a motor vehicle to use reasonable care to have it in a reasonably safe condition and properly equipped for operation so that the vehicle may be controlled and not be a source of danger to others. It is the owner's and operator's duty to use such care in the inspection, maintenance and repair of the vehicle that a reasonably prudent owner or operator would use under the same circumstances (See generally Fried v. Korn, 296 A.D. 107 [1st Dept. 1955], aff'd 1 NY2d 691).
In order to prevail on its motion for summary defendants must make a prima facie showing that they violated no duty of care owed to the plaintiffs with respect to the operation and maintenance of the subject truck.
There is no dispute that pieces of the tire came of the inside wheel on the rear driver's side of the truck bed and came into contact with the Camry vehicle occupied by the plaintiffs.
Mr. Goldberg testified that he is the president of ARMA, which owns the truck in question. He stated that the truck weighed 59,000 pounds, had three axles and had a total of ten wheels, two in the front cab and eight more on the truck bed, with two wheels on each of the sides of the bed. He testified that Eastern Tire did all the tire work on ARMA s truck. He did not know the life expectancy of a new tires, or the recommended tire pressure for any of the eight wheels in the back. He further testified that five tires were replaced within the year prior to May 30, 2006 on the subject truck; three by recapped tires. He was not aware which of the five replaced tires were new or recapped. He also did not know if the subject truck had been inspected by the Department of Transportation. He stated that the vehicle had been inspected on April 3, 2006 by AF and JR Truck Repairs, Inc.
The affidavit of Ira Berger, a principal of Eastern Tire, stated the following allegations of facts. New or recapped tires were placed on the truck on December 30, 2005; February 27, March 5, March 27 and April 19, 2006. It was the custom of his company to inspect the tires on each occasion and replace them as needed.
The affidavit of Andreas Fernandez, a principal of AF and JR Truck Repairs, Inc, sets forth the following facts. Work was done on the subject truck on January 3 and 20, March 16 and April 19, 2006. Whenever work was done the tires would be inspected. If any tire needed replacement, Fernandez would contact Dennis Goldberg and advise him of that fact. Fernandez also stated that the truck was inspected on April 3, 2006 and passed inspection.
Stephens, the operator of the subject truck testified that the had experienced a prior blow out on the subject truck within the year prior to May 30, 2006. He further testified that on May 30, 2006, he looked over the tires for cuts or bruises. On that day he was transporting a load of iron which filled seventy five percent of the truck bed.
In summary, the defendants seek summary judgment in their favor on the issue of liability by demonstrating, among other things, the following. The truck passed a New York State inspection, approximately eight weeks prior to the accident and Stephens and the operator of the truck, looked at the tires and found no cuts and bruises on the date of the accident.
The defendants' evidentiary showing, however, raises more questions then it answers. It is noted, that the defendants offered no evidence from an expert on truck tire maintenance as to the proper standard of care for a truck tire. The evidence submitted demonstrates that it is a commercial vehicle used in the business of transporting cargo in New York and New Jersey. Stephens, the operator of the truck, did not claim that he possessed any expertise in the inspection or maintenance of the tires on the subject truck. Indeed, Stephens had no personal knowledge as to when any of the tires in the subject truck were put in service. The affidavit of Ira Berger, a principal of Eastern Tire, did not state whether the tire which came of the truck was new or recapped, the date that it was put in service, its useful life or the proper level of air pressure it was required to maintain. The affidavit of Andreas Fernandez, a principal of AF and JR Truck Repairs, Inc, also lacked this information. The defendants did not submit the owner's manual of the subject truck to show the type of tires that were compatible with the subject truck or the suggested maintenance schedule for said tires. They offered no regulations from either the Commissioner of New York State Department of Motor Vehicles or the Department of Transportation showing what if any standards exist with respect to tire inspections and maintenance for the subject truck. In sum, the defendants did not offer any evidence expert or other showing what constitutes reasonable inspection and maintenance of the tires of the subject truck.
The court was left to wonder, what was the size, type and model number of the inner rear left side tire that came off the subject truck. Was it a new or recapped? When was it first put in service? What was its useful life? Was it properly inflated consistent with the trucks weight and the weight of its cargo. It is noted that Stephens did not testify that he checked the pressure of any of the tires the date of the accident. Rather he claimed that he looked them over for bruises or cuts. Stephens, however, did testify that the truck was carrying a load of iron which filled 75% of its capacity on the date of the accident.
In the absence of an affidavit of an expert and any of the aforementioned specific information about the tire which came off the truck, the defendants have failed to make a prima facie showing that they reasonably inspected or maintained the tires on the subject truck. As such, the court need not consider the sufficiency of plaintiffs' opposition papers or defendants' reply to same ( Hughes v. Cai , 31 AD3d 385 -386 [2nd Dept. 2006]).
Morever, assuming for the sake of argument, that defendants had made a prima facie showing of reasonable care in the inspection and maintenance of the tires of the subject truck, plaintiffs would have been able to raise an issue of fact by application of the concept of res ipsa loquitur to the attendant facts of this case (see Pollock v. Rapid Industrial Plastics Co., Inc, 113 AD2d 520 [2nd Dept. 1985]). "There must be reasonable evidence of negligence; but where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, if affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care" ( Pollock v. Rapid Industrial Plastics Co., Inc, supra at 523 citing Prosser and Keaton Torts § 39, p 244 [5th ed.]. The Pollack decision applied the concept of res ipsa loquitur to a case involving a tire coming of a truck and injuring the plaintiff, under circumstances remarkably similar to the case at bar.
Defendants motion for summary judgment on the issue of liability in its favor is denied.
The foregoing constitutes the decision and order of this court.