Opinion
Index No. 713321/18 Motion Cal. No. 11 Motion Seq. No. 02
03-31-2021
I. L. an infant by her Father and Natural Guardian, WILLIAM LANGOLF, and WILLIAM LANGOF, individually, Plaintiff(s), v. NAYON SARKER and TAXI FLEET MANAGEMENT, LLC, Defendant(s).
Unpublished Opinion
Motion Date: 12/8/20
PRESENT: HONORABLE JANICE A. TAYLOR JUSTICE
Janice A. Taylor, Judge
The following papers numbered 1-8 read on this motion by defendant Taxi Fleet Management, LLC ("Taxi Fleet")), pursuant to CPLR 3212, for summary judgment dismissing the complaint as to it.
PAPERS NUMBERED
Notice of Motion-Affirmation-Exhibits-Service............ 1-4
Affirmation in Opposition-Service........................ 5 - 6
Reply Affirmation-Service................................ 7 - 8
Upon the foregoing papers, it is ORDERED that the abovereferenced motion is decided as follows:
This personal injury action arises from an alleged December 27, 2016 motor vehicle accident that occurred in Queens County, involving a taxicab bearing license plate number 6M77. Plaintiffs allege that defendant Taxi Fleet owned, leased, and/or rented the vehicle to defendant Nayon Sarker, its operator at the time of the accident. Each defendant has separately appeared and answered.
Taxi Fleet now moves for summary judgment dismissing the complaint. Summary judgment is a drastic remedy that will be granted only if the movant has demonstrated, through submission of evidence in admissible form, the absence of any material issues of fact (see Vega v Restani Constr. Corp., 18 N.Y.3d 499, 503 [2012]), and has affirmatively established the merit of his or her cause of action or defense (see Zuckerman v New York, 49 N.Y.2d 557, 562 [1980]). A failure to make such prima facie showing of entitlement to judgment as a matter of law "requires a denial of the motion, regardless of the sufficiency of the opposing papers" (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]). If a movant makes this showing, the burden then shifts to the non-movant to raise a material issue of fact requiring a trial (see id). Courts must view the evidence in the light most favorable to the non-movant (see Branham v Loews Orpheum Cinemas, Inc., 8 N.Y.3d 931, 932 [2007]), and draw all reasonable inferences in his or her favor (see Haymon v Pettit, 9 N.Y.3d 324, 327, n* [2007]) .
Taxi Fleet argues that it is entitled to summary judgment because it did not own or operate the subject vehicle. Pursuant to VTL § 388, motor vehicle owners are liable for injuries resulting from the negligent operation of their vehicles used with the owners' permission. "In addition, New York law makes vehicle lessors, their assignees, and their agents vicariously liable as 'owners' under the Vehicle and Traffic Law ..." (Zegarowicz v Ripatti, 77 A.D.3d 650, 652 [2d Dept 2010]; see also VTL § 128).
In support of the motion, Taxi Fleet submits an affidavit from its vice president, Vladimir Shvartsman, who explains that Taxi Fleet "is a lease management company that acts on behalf of the taxi owner and medallion, and leases vehicles on behalf of their owner to self-employed taxi drivers." Rather, Mr. Shvartsman avers that Taxi Fleet has never: owned the taxi medallion associated with the vehicle involved in the accident; operated, maintained, or managed the subject vehicle; employed codefendant Barker; or supervised or controlled the day-to-day operation of the vehicle.
Taxi Fleet also submits a certified copy of what purports to be the registration plate record for the subject vehicle, appearing to identify non-party Harrow Taxi Corp, as the registered owner. The court cannot fully interpret the document, however, as it does not include a legend, or other statement from the Department of Motor Vehicles explaining the many codes listed therein. Moreover, the document refers to plate number "6M77H," whereas the complaint and Mr. Shvartsman's affidavit reference a vehicle bearing plate number "6M77," and no witness has explained the inconsistency. This evidence, thus, fails to affirmatively establish that it pertains to the actual vehicle involved in the accident.
Based on the above, Taxi Fleet appears to argue that it was merely a "taxicab agent," and not an owner of the vehicle. Taxi Fleet relies upon cases from the First Department construing both the VTL and NYC Administrative Code § 19-530, which provides that a medallion owner remains responsible for the operation of a taxicab bearing its medallion. Although the parties do not cite Second Department precedent applying the latter statute, it is noted that the Court generally requires defendants seeking summary judgment on the ground that vicarious liability under VTL § 388 is inapplicable, to establish that they are not "owners," as defined by VTL § 128 (see e.g. Levine v Brooks, 291 A.D.2d 481, 482 [2d Dept 2002]; Sullivan v Spandau, 186 A.D.2d 641, 642 [2d Dept 1992]).
Mr. Shvartsman's affidavit might ordinarily constitute prime facie proof that Taxi Fleet did not own the subject vehicle or its taxi medallion, and was not involved in any manner with the vehicle's operation, thus, entitling Taxi Fleet to summary judgment. Plaintiffs argue, however, that the affidavit is selfserving, and Taxi Fleet's motion is premature. CPLR 3212 (f) provides that
"[s]hould it appear from affidavits submitted in opposition to the motion that facts essential to justify opposition may exist but cannot then be stated, the court may deny the motion or may order a continuance to permit affidavits to be obtained or disclosure to be had and may make such other order as may be just."
The party invoking CPLR 3212 (f) must "demonstrate how discovery may reveal or lead to relevant evidence, or that facts essential to opposing the motion were exclusively within another party's knowledge and control" (Martens v County of Suffolk, 100 A.D.3d 839, 840 [2d Dept 2012] [internal quotation marks omitted]). Moreover,
"on a motion for summary judgment ..., self-serving statements of an interested party which refer to matters exclusively within that party's knowledge create an issue of credibility which should not be decided by the court but should be left for the trier of facts" (Quiroz v 176 N. Main, LLC, 125 A.D.3d 628, 631 [2d Dept 2015], quoting Sacher v Long Is. Jewish-Hillside Med. Ctr., 142 A.D.2d 567, 568 [2d Dept 1988]) .
Plaintiffs advise, and Taxi Fleet does not controvert, that at the time they submitted their papers in response to this motion, their unopposed motion in Civil Court to consolidate this action with a related personal injury action in that court, was sub Judice. According to plaintiffs, Harrow Taxi Corp, is named as a defendant in the Civil Court action, which arises from the same motor vehicle accident at issue here. Plaintiffs further allege that Taxi Fleet's vice president, Mr. Shvartsman, is also an agent of Harrow Taxi Corp. Plaintiffs, thus, contend that additional discovery is warranted to ascertain the true relationship between Harrow Taxi Corp, and Taxi Fleet, and to determine whether the latter played any supervisory role over Barker, who operated the subject vehicle. To this point, it is noted that Barker has not submitted any papers on this motion, and, thus, has remained silent as to whether he was employed by, or otherwise acted as an agent of, Taxi Fleet, so as to render it liable under VTL § 388. The court finds that these are matters exclusively within the knowledge of the defendants. Hence, on the record as developed, thus far, Mr. Shvartsman's self-serving denials are insufficient to eliminate all issues of fact regarding ownership or control over the subject vehicle (see Quiroz, 125 A.D.3d at 631 [defendant's employee's selfserving testimony that he did not create the hazardous condition held insufficient to warrant summary judgment]; Titley v Amerford Inti. Corp., 249 A.D.2d 380, 381 [2d Dept 1998] [plaintiff's summary judgment motion denied because whether he acted in good faith, and knew that his conduct was unlawful "are matters exclusively within his knowledge"]; cf. Martens, 100 A.D.3d at 840 [summary judgment granted where information pertaining to county's ownership of the sidewalk was a matter of public record]; Kenworthy v Oyster Bay, 116 A.D.2d 628, 629 [2d Dept 1986] [same, re: town's ownership of public roadway]).
This court previously denied plaintiffs' motion for the same relief, on the ground that the consolidation motion should be made in Civil Court, as that action was commenced first.
Accordingly, the above-referenced motion by Taxi Fleet for summary judgment dismissing the complaint as against it is denied.
The foregoing shall constitute the decision and order of this court.