Opinion
18719/03.
Decided January 2, 2008.
Upon the foregoing papers, defendants Julio Rodriguez and Sheila Rodriguez move, pursuant to CPLR 3212, for summary judgment dismissing the complaint of plaintiffs Melisa Gonzalez, Desi Gonzalez, Sophia Garcia and Margarita Perez and all claims and cross claims insofar as asserted against them. Defendant Patrick Laurent moves, pursuant to CPLR 3212, for summary judgment dismissing plaintiffs' complaint on the ground that they did not sustain a "serious injury" within the meaning of Insurance Law § 5102.
This personal injury action arises out of a collision which occurred on July 27, 2002 when a vehicle owned by defendant Julio Rodriguez (Julio) and operated by defendant Sheila Rodriguez (Sheila) was struck by a vehicle owned and operated by defendant Patrick Laurent (Laurent). At the time of the occurrence, plaintiffs Melisa Gonzalez (Melisa), Desi Gonzalez (Desi) and Sophia Garcia (Sophia) were passengers in the Rodriguez vehicle.
In their cross motion, the Rodriguez' point out that, according to the deposition testimony of Sophia and themselves, the Rodriguez vehicle, after having been stopped at a red light for least one to two minutes, was hit from behind by the Laurent vehicle, which had approached the Rodriguez vehicle from behind at 40 miles per hour. The Rodriguez' argue that based upon the foregoing, as a matter of law no negligence can be attributed to them.
In opposition to the motion, Laurent contends that, according to the police accident report, he told police that the Rodriguez vehicle, "did begin to move [her] veh[icle] forward after [the] light turned green then stopped suddenly." He argues that the police report is admissible under CPLR 4518, the business records exception to the hearsay rule, and rebuts any inference of negligence which may arise because the Rodriguez vehicle was struck in the rear.
Laurent has not appeared for a deposition. Pursuant to a court order, dated October 20, 2006 (Ruditzky, J.), Laurent was precluded from testifying at trial if he did not appear for a deposition by January 20, 2007. There is no evidence that he gave deposition testimony and therefore, he is precluded.
In reply, the Rodriguez' assert that Laurent's statement in the police report is hearsay and therefore inadmissible, that it is undisputed that their vehicle was struck from the rear, and that since Laurent cannot offer any evidence to controvert this showing, they are entitled to summary judgment.
A rear-end collision with a stopped or stopping vehicle creates a prima facie case of liability with respect to the operator of the moving vehicle and imposes a duty on that operator to rebut the inference of negligence by providing a non-negligent explanation for the collision (see Rainford v Han, 18 AD3d 638, 639). Here, the Rodriguez' established their prima facie entitlement to judgment as a matter of law by demonstrating that the Laurent vehicle struck their vehicle from behind.
In opposition, Laurent has failed to rebut this showing. It is true, as Laurent contends that "[a] sudden, negligent, or unexplained stop of the lead vehicle can constitute a non-negligent explanation because the lead driver has a duty not to stop suddenly or slow down without proper signaling so as to avoid a collision when there is opportunity to give such signal" ( John v Leyba , 38 AD3d 496), and that therefore, "where the frontmost driver also operates his vehicle in a negligent manner, the issue of comparative negligence is for a jury to decide" ( id., see Gaeta v Carter , 6 AD3d 576). Here, however, the police report which contains Laurent's statement that Sheila stopped suddenly constitutes an "inadmissible, self-serving declaration, and thus fails to rebut the Rodriguez' prima facie showing ( Hatton v Gassler, 219 AD2d 697, 697). As such, the cross motion of the Rodriguez' for summary judgment dismissing the complaint and all claims and cross claims asserted against them is granted.
Defendant Laurent cross-moved for summary judgment based on plaintiffs alleged failure to sustain a "serious injury" as that term is defined in Insurance Law § 5102. However, defendant Laurent has never appeared for an examination before trial, and as a result, he has been precluded from testifying in the trial of this matter pursuant to the Civil Practice Law and Rules Section 3126. Consequently, defendant Laurent is not entitled to move for the relief requested. As I previously noted in my decision Khandaker v. McKoy, Slip Copy, 16 Misc 3d 1122 (A), 2007 WL 2315982 (N.Y.Sup.), 2007 NY Slip Op. 51548(U), a movant cannot ignore prior Court orders and then affirmatively exploit or benefit from his wilful and contumacious conduct. In the Khandaker case, as in this instance, a defendant (Mohammed Alamgir) who had been precluded from testifying at trial for failing to appear for court ordered depositions, moved for summary judgment. I denied defendant Alamgir's motion for summary judgment, reasoning in that decision that as a result of his wilful conduct in openly defying Court orders, he had forfeited his right to move for summary relief. I rendered my decision after a careful review of recent Court decisions regarding Court sanctions for non-compliant parties.
As it was noted in Khandaker v. Mckoy, supra:
The statutory scheme for sanctioning non-compliant parties as well as the relevant case law, give a Judge discretion to enter judgement against a party who does not comply with Court orders and discovery schemes. In Reynolds Securi., inc. v. Underwriters Bank and Trust Co., 44 NY2d 568, the Court of Appeals noted that the defendant, who wilfully failed to appear for scheduled depositions, "[did] not, and indeed cannot, successfully quarrel with the order, to the extent that it struck the answer and directed the entry of a default judgment on the issue of liability, for the Court was more than eminently justified in following that course." See also Kihl v. Pfeffer, 94 NY2d 118. (Affirming an Order striking the complaint after plaintiffs failed to answer interrogatories by the Court ordered deadline). This drastic measure is sustainable because of the detriment that non-compliant litigants can have on the integrity of the Courts:
If the credibility of a Court order and the integrity of our judicial systemare to be maintained, a litigant cannot ignore court orders withimpunity.Indeed, the Legislature, recognizing the need for Courts tobe able to command compliance with their disclosure directives, hasspecifically provided that a Court may make such orders . . . as are just'. . .
Id.(quoting the Civil Practice Law and Rules Sec. 3126.
Similar case law has issued from the Court of Appeals when it issued its decision in Brill v. City of New York , 2 NY3d 648 and determined that even though a motion for summary judgment has merit, it cannot be considered if it is served and filed after the statutory deadline of 120 days after the filing of the Note of Issue. In that case, it was clear that the plaintiff failed to establish that the defendant had notice of the defect prior to the date of the accident, a non-waivable and serious defect in the plaintiff's case. However, because the defendant City failed to raise the issue within the requisite time limits, the motion was denied. The Court of Appeals was very clear in its decision when it determined that failure to comply with statutory rules and/or time limits can adversely affect a litigant's rights within the lawsuit.
Here, defendant Laurent's failure to appear for scheduled depositions and to comply with Court orders, like defendant Alagmir's failure to appear for depositions in Khandaker, poses no less of a threat to the integrity of our judicial system than did the situations presented in Reynolds, Kihl and Brill, supra. Although defendant Laurent's deposition testimony may not have included testimony regarding the question of "serious injury", granting a non-compliant movant summary judgment on this or any grounds would condone and encourage the wilful and contumacious behavior of litigants. To grant defendant Laurent summary judgment, would be to reward him for his willful conduct by allowing him to avoid a trial, unscathed by any serious sanctions for his openly defiant failure to comply with court orders.
As stated in Khandaker, supra, "While summary judgment is a useful tool for eliminating meritless claims, it should be reserved for litigants who do not flout the authority of the court during the pre-trial stages of litigation. The basic rule of litigation must be upheld: Follow the Orders of the Court or be subjected to sanctions that uphold the integrity of the judicial system." Consequently, the cross-motion by defendant Laurent for summary judgment based on plaintiffs' failure to sustain "serious injury" is denied.
Accordingly, the application of defendants Julio Rodriguez and Sheila Rodriguez for summary judgment and dismissal is granted and this action is ORDERED severed and the complaint is dismissed insofar as asserted against defendants Julio Rodriguez and Sheila Rodriguez. The cross-motion of defendant Laurent for summary judgment dismissing the complaint of plaintiffs on the ground that they did not sustain a serious injury is denied.
This constitutes the decision, order and judgment of the court.