Lorenzo v. Mensi

Full title: CARLOS LORENZO, Plaintiff, v. PAULA MENSI, Defendant.

Court: Supreme Court, Bronx County

Date published: Jan 24, 2022

2022 N.Y. Slip Op. 32205 (N.Y. Sup. Ct. 2022)

Opinion

No. 20961/2018E Motion Seq. No. 1

01-24-2022

CARLOS LORENZO, Plaintiff, v. PAULA MENSI, Defendant.

HON. VERONICA G. HUMMEL, A.J.S.C.

Unpublished Opinion

DECISION/ORDER

HON. VERONICA G. HUMMEL, A.J.S.C.

In accordance with CPLR 2219 (a), the decision herein is made upon consideration of all papers filed by the parties in NYSCEF regarding the motion of plaintiff CARLOS LORENZO [Mot. Seq. 1 ] (plaintiff), made pursuant CPLR 3212, for an order granting plaintiff partial summary judgment as to liability against defendant PAULA MENSI, dismissing the affirmative defense alleging comparative fault (the third affirmative defense), and directing a trial as to damages.

The undisputed facts as set forth by the parties are as follows: This action arises out of a motor vehicle - motorcycle accident which occurred on December 24, 2017, in the intersection of Wagner Avenue and Halstead Avenue at 12:00p.m. (the intersection). At the intersection, there was a stop sign on the right corner of Wagner Avenue. There were no traffic control devices on the Halstead Avenue that governed entering the intersection.

Defendant approached the intersection northbound on Wagner Avenue driving a car which collided with plaintiff who was riding a motorcycle. Plaintiff approached the relevant intersection driving eastbound on Halstead Avenue before the crash occurred. The front of plaintiff's motorcycle impacted with the driver side door of defendant's car.

In support of the motion, plaintiff submits a statement of material facts, an attorney's affirmation, the pleadings, the uncertified police report (the Uncertified Police Report), photographs, and transcripts of the parties' depositions. Defendant opposes the motion with a counterstatement of material facts, discovery demands, an uncertified and unauthenticated copy of the property damage arbitration decision (the Arbitration Decision), a copy of the Uncertified Police Report, an unaffirmed and uncertified transcript of an insurance company interview (the Interview Transcript), an email, and a memorandum of law.

Plaintiff testified at his deposition that he has no memory of the accident, a result of the injuries that he sustained in the collision which left him unconscious for two weeks.

Defendant testified that she was familiar with the intersection. Defendant states that she understood that drivers, like plaintiff, heading eastbound on Holstead Avenue have the right of way when entering the intersection, and it was her responsibility, coming from Wagner Avenue, to yield both because she was making a left turn and because of the stop sign. Defendant stated at the time of the accident, she stopped at the stop sign and looked both ways. Parked cars along the eastbound lane of Holstead blocked her view down Halstead Avenue. Defendant inched her vehicle forward so that she could see past the parked cars. As defendant's vehicle inched forward into the intersection, it entered the eastbound lane of traffic on Halstead Avenue. Defendant looked to her left as she inched forward. Defendant testified that her view was not perfectly clear. She began the move and felt an impact with plaintiff's motorcycle. Defendant testified that she saw the motorcycle one half of a second or second before impact, and that plaintiff had his head down. She could not estimate the speed at which defendant was travelling.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact . . ." (Winegrad v New York Univ. Med Ctr., 64 N.Y.2d 851 [1985]). The burden then shifts to the motion's opponent to "present evidentiary facts in admissible form sufficient to raise a genuine, triable issue of fact" (Mazurek v Metropolitan Museum of Art, 27 A.D.3d 227 [1st Dept (2006)]). A plaintiff in a negligence action moving for summary judgment on the issue of liability must therefore establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant's negligence was a proximate cause of the alleged injuries (Fernandez v Ortiz, 183 A.D.3d 443 [1st Dept 2020]; see Rodriguez v City of New York, 31 N.Y.3d 312 [2018]). A plaintiff is no longer required, however, to show freedom from comparative fault in establishing his or her prima facie case (see Rodriguez v City of New York, supra).

Pursuant to Vehicle and Traffic Law § 1142(a), a driver entering an intersection controlled by a stop sign must yield the right-of-way to any other vehicle that is already in the intersection or that is approaching so closely as to constitute an immediate hazard (Wolf v Cruickshank, 144 A.D.3d 1144, 1145 [2d Dept 2016]) In addition, the driver with the right-of-way is entitled to anticipate that other drivers will obey traffic laws that require them to yield (Cruz v DiSalvo, 188 A.D.3d 986, 987 [2d Dept 2020]).

As the Court stated in McCants v Franchi (192 A.D.3d 406 [1^st Dept 2021]):

"Plaintiff made a prima facie showing that defendants were negligent as a matter of law, by demonstrating that defendants' bus proceeded into the intersection after stopping at a stop sign, but without yielding the right-of-way to plaintiff's bus, in violation of Vehicle and Traffic Law §§ 1142(a) and 1172(a)… Plaintiff, as the driver with the right-of-way, was entitled to anticipate that Franchi would obey traffic laws that required him to yield, and the question as to whether she was comparatively negligent by driving too fast or not sounding her horn before the impact does not preclude partial summary judgment in her favor on the issue of liability (see Ayala v Pascarelli, 168 A.D.3d 613, 614 [1st Dept 2019])."

Based on the record, therefore, plaintiff sets forth a prima facie case that defendant acted with negligence per se by entering the intersection and failing to yield the right of way. Further, the failure of the defendant to observe the approach of the plaintiff's motorcycle establishes that defendant failed to keep a proper lookout.

In opposition, defendant does not provide a non-negligent justification for the Accident. In fact, rather than argue the there was a non-negligent justification for the collision, defendant focuses on the issue of comparative negligence. Plaintiff is therefore entitled to partial summary judgment as to liability. In this regard, the courts have held that where the proof establishes that a vehicle enters an intersection without a clear view of traffic and fails to yield the right-of-way to cross-traffic after stopping at a stop sign, the evidence is sufficient to establish the driver is negligent based upon a violation of Vehicle and Traffic Law § 1142(a) (see Stan v Goojha, 42 Misc.3d 1211(A) [Sup.Ct. Queens County 2014], Galvis v Ravilla, 111 A.D.3d 600 [2d Dept 2013]). Hence, summary judgment in favor of the plaintiff is warranted here even if there exists an issue of fact as to comparative negligence (McCants v Franchi, supra).

Comparative Negligence

In addition, plaintiff's evidence makes a prima facie showing that plaintiff was not negligent, plaintiff's actions did not contribute to causing the Accident, and therefore defendant was the sole proximate cause of the Accident. Consequently, plaintiff makes a prima facie showing warranting the grant of the motion to dismiss the affirmative defense of comparable negligence.

The First Department has held, however, that a driver who lawfully enters an intersection may still be found partially at fault for an accident if he or she fails to maintain a proper lookout, or to use reasonable care to avoid a collision with another vehicle in the intersection (Nevarez v S.R.M. Mgt. Corp., 58 A.D.3d 295, 298 [1st Dept 2008]). Here, defendant argues that there is a question of fact as to whether plaintiff was speeding and failed to use reasonable care to avoid the collision, and therefore the issue of comparative negligence is for the jury.

In support of the opposition, defendant submits testimony, the Uncertified Police Report, the Interview Transcript (a transcript of an incomplete telephone interview between a Geico representative named Brian (unknown) and plaintiff taken on January 18, 2018), and the Arbitration Decision, dated July 20,2018 (an arbitration based on property claims between defendant's and plaintiff's insurance companies). Defendant also argues that the motion is premature.

Based on the record, defendant fails to generate an issue of fact as to plaintiff's comparative negligence because none of the defendant's submissions constitute competent evidence. Of import, while a motion for summary judgment may be opposed by hearsay evidence, hearsay evidence may not be the only evidence submitted (see Dong v Cruz-Marte, 189 A.D.3d 613 [1^st Dept 2020]).

As for defendant's testimony, it proves that defendant pulled into the intersection without a clear view of the roadway, and that defendant saw plaintiff's motorcycle only one second before impact, which occurred to defendant's driver side door. The testimony does not provide a factual basis on the motion for finding that plaintiff had an opportunity to take evasive measures to avoid the collision (Cruz v DiSalvo, 188 A.D.3d 986, 987 [2d Dept 2020] [entering intersection without yielding the right-of-way was the sole proximate cause of the accident]). Nothing in defendant's testimony proves plaintiff was negligent and any speculation that the plaintiff should have been able to avoid the collision or was speeding is devoid of any evidentiary basis and is predicated on surmise only (Belle-Fleur v Desriviere, 178 A.D.3d 993 [2d Dept 2019];see Gonzalez v Bishop, 157 A.D.3d 460 [1^stDept 2018]).

The Uncertified Police Report

As for the Uncertified Police Report, it contains a police officer's summary of testimony, and the purported sworn statements by a non-party witness and defendant. The report is uncertified and a foundation of its admissibility has not been laid by some other method, and therefore the report and its contents constitute inadmissible hearsay (Yassin v Blackman, 188 A.D.3d 62 [2d Dept 2020]). In any event, the relevant portions of the Uncertified Police Report are hand-written statements by defendant and a non-party witness, and a police officer's summary of the non-party witness' testimony and the officer's conclusions on the cause of the Accident, and each is incompetent evidence.

Police officer's summary

Even if the police report is considered, the police officer's summary of the non-party's statement is double hearsay that does not qualify for any hearsay exception and, in any event, actually mischaracterizes the statement of the non-party witness. In addition, the report contains the police officer's conclusions as to the cause of the accident even though the officer was not an eyewitness to the accident. As such, the officer's conclusions are incompetent evidence that bears on the ultimate issue to be determined by the jury (Country-Wide Insurance Company v Lobello, 186 A.D.3d 1213 [2d Dept 2020]).

Defendant's statement

As for the defendant's witness statement contained in the Uncertified Police Report, the statements therein are self-serving declarations and, therefore, are impermissible hearsay, not subject to a hearsay exception, and improperly seek to bolster the defendant's testimony (see, Richardson, Evidence §§ 357, 519 [Prince 10th ed]; Shufelt v City of New York, 80 A.D.2d 554 [2d Dept 1981]).

Non-party's statement

In addition, the written statement attributed to non-party witness Abel Martinez-Castillo, is hearsay. In any event, the statement made by the non-party witness that he was "in the hallway of [his] house…when [he] heard the sound of a motorcycle; at the same time, I saw a car in the middle of the intersection. And at that moment the motorcycle crashed and was sent into the air" does not create an issue of fact as to plaintiff's speed or contributory negligence. To the extent that the police officer summarizes this non-party witness' statement to the contrary in the report, that summarization is without evidentiary value as the witness' statement speaks for itself. Accordingly, nothing in the police report or written statements contained therein constitutes competent evidence capable of generating an issue of fact as to plaintiff's comparative negligence.

The Interview Transcript

Further, the transcript of the post-accident telephone interview is inadmissible and incompetent evidence. The transcript is incomplete (including lack the full name of the interviewer or any affidavit affirming the transcript's veracity), unaffirmed, unauthenticated, unsworn, and lacks an evidentiary foundation and is therefore disregarded as incompetent evidences and as inadmissible hearsay (see Global Energy Efficiency Holdings Inc., v William Penn Life Insurance Company of New York, 180 A.D.3d 624 [1^stDept 2020]). In any event, defendant concedes that the interview was conducted while the plaintiff was represented by counsel in the course of ongoing litigation, and, consequently, the statement will not be considered by the court as it was improperly obtained in violation of attorney-client principles.

The Arbitration Decision

In light of these findings, defendant's reliance on the Arbitration Decision to generate an issue of fact is misguided as the Arbitrator's Decision is almost entirely based on the Interview Transcript and Uncertified Police Report. Plaintiff did not participate in the proceeding and it appears that no witness testified. In the report, the arbitrator summarized statements allegedly made by defendant (in the Uncertified Police Report), plaintiff (in the Interview Transcript), and the non-party witness (included in the Uncertified Police Report). Another statement is attributed to a witness Carlos Cannnavo, without any identification of the source, and therefore cannot be considered (Yassin v Blackman, supra). It appears that there was no actual in -person testimony at the hearing, and all of the conclusions therein are based on inadmissible hearsay. As the decision relies entirely on multileveled hearsay evidence, it is not competent evidence

In any event, the Arbitration Decision is uncertified and unauthenticated, and lacks a fundamental evidentiary foundation. Accordingly, the Arbitration Decision is not proper evidence for the court to consider.

Premature Motion

Finally, defendant argues that the motion is premature as the deposition of the non-party witness and responding police officer have not been completed. It is well established that a defendant may not cite his own inaction as justification to deny plaintiff's motion for summary judgment (see Hamilton v National Amusements, Inc., 177 A.D.3d 449 [1^st Dept 2019]). Here, the Police Report containing the relevant statements and identities of both individuals is dated December 24, 2017. In opposition to the motion, however, defendant does not set forth any attempts to take the relevant depositions at any time over the past four years. The argument that the motion is premature due to the failure to depose the witnesses therefore lacks merit (see Hamilton v National Amusements, Inc., supra).

Based on the above legal conclusions, defendant fails to submit any admissible evidence capable of generating an issue of fact as to whether plaintiff was comparatively negligent and therefore the part of the motion that seeks to dismiss the affirmative defense of comparable negligence is granted.

The court has considered the additional contentions of the parties not specifically addressed herein. To the extent any relief requested by either party was not addressed by the court, it is hereby denied. Accordingly, it is hereby

ORDERED that the motion of plaintiff CARLOS LORENZO [Mot. Seq. 1 ] (plaintiff), made pursuant CPLR 3212, for an order granting plaintiff partial summary judgment as to liability against defendant PAULA MENSI, and dismissing the affirmative defense alleging comparative fault (the third affirmative defense) is granted.

The foregoing constitutes the Decision/Order of the court.