Opinion
452540/2015
08-19-2020
Tanya MALLORY, Plaintiff, v. The CITY OF NEW YORK, Consolidated Edison Company of New York, Inc., Verizon New York, Inc., Robinson Kassiem, Jacob Rivers, Defendants.
Plaintiff, Paris & Chaikin, PLLC, By: Deborah Lara, Esq., City of New York, James E. Johnson, Corporation Counsel of the City of New York, By: Assistant Corporation Counsel Aaron Washington-Childs, Esq. Defendant Con Edison, Nadine Rivellese, Esq., Jennifer A. Coyne, Esq. Defendant Robinson S. Kassiem and Jacob A. Rivers, DeSena & Sweeney, LLP, By: Shawn P. O'Shaughnessy, Esq. Defendant Verizon New York, Inc., Lewis, Brisbois, Bisgaard & Smith, By: Anthony P. Luckie, Esq.
Plaintiff, Paris & Chaikin, PLLC, By: Deborah Lara, Esq., City of New York, James E. Johnson, Corporation Counsel of the City of New York, By: Assistant Corporation Counsel Aaron Washington-Childs, Esq.
Defendant Con Edison, Nadine Rivellese, Esq., Jennifer A. Coyne, Esq.
Defendant Robinson S. Kassiem and Jacob A. Rivers, DeSena & Sweeney, LLP, By: Shawn P. O'Shaughnessy, Esq.
Defendant Verizon New York, Inc., Lewis, Brisbois, Bisgaard & Smith, By: Anthony P. Luckie, Esq.
Dakota D. Ramseur, J. Plaintiff Tanya Mallory commenced this action seeking damages for injuries sustained in an October 2, 2013 car accident in which a car owned by Defendant Jacob Rivers and driven by Defendant Robinson Kassiem collided with a defect in the roadway allegedly owned by Co-Defendants City of New York, Con Edison, and/or Verizon New York, Inc. Plaintiff moves, pursuant to CPLR 3212, for partial summary judgment on liability, arguing that "Defendants cannot provide a non-negligent explanation for the collision that occurred, nor can [D]efendants offer any theory of liability that might support a finding that plaintiff was in any way responsible for and/or contributed to the instant accident" (NYSCEF 54 ¶ 23). Every Defendant opposes with similar arguments: that summary judgment is premature because only Plaintiff has been deposed, and that an issue of fact exists with respect to Plaintiff's culpability as a passenger based on Plaintiff's deposition testimony that she made a "smart" comment which induced the driver to laugh just before the accident. For the reasons below, the Court grants the motion.
Summary judgment is a "drastic remedy" and will only be granted in the absence of any material issues of fact (id. ). To prevail on a motion for summary judgment, the movant must make a prima facie showing of entitlement, tendering sufficient admissible evidence to demonstrate the absence of any material issues of fact ( Zuckerman v. City of N.Y. , 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ; Jacobsen v. New York City Health and Hospitals Corp ., 22 N.Y.3d 824, 988 N.Y.S.2d 86, 11 N.E.3d 159 [2014] ; Alvarez v. Prospect Hosp. , 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ). The movant's initial burden is a heavy one; on a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party ( Jacobsen , 22 N.Y.3d at 833, 988 N.Y.S.2d 86, 11 N.E.3d 159 ). If the moving party fails to make its prima facie showing, the court is required to deny the motion, regardless of the sufficiency of the non-movant's papers ( Winegrad v. New York Univ. Med. Center , 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985] ). However, if the moving party meets its burden, the burden shifts to the party opposing the motion to establish, by admissible evidence, the existence of a factual issue requiring a trial of the action, or to tender an acceptable excuse for the failure to do so ( Zuckerman , 49 N.Y.2d at 560, 427 N.Y.S.2d 595, 404 N.E.2d 718 ; Jacobsen , 22 N.Y.3d at 833, 988 N.Y.S.2d 86, 11 N.E.3d 159 ; Vega v. Restani Construction Corp. , 18 N.Y.3d 499, 503, 942 N.Y.S.2d 13, 965 N.E.2d 240 [2012] ).
As an initial matter, to the extent that Plaintiff focuses on the lack of any affidavit in opposition, as well as the summary judgment standards set forth in Zuckerman , 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718, Zuckerman does not limit acceptable evidence to an affidavit. Rather, Zuckerman contemplated, among other things, a "transcript of any examination before trial" ( id. at 563, 427 N.Y.S.2d 595, 404 N.E.2d 718 ). Here, Plaintiff testified at an EBT that she may have distracted the driver by saying "something smart we were laughing" just prior to the accident (NYSCEF 66 23:25-24:10). As Defendants argue, "[a] passenger in a vehicle is required to exercise reasonable care for his or her own safety" ( Posner v. Hendler , 302 A.D.2d 509, 755 N.Y.S.2d 255 [2d Dept. 2003] [holding that whether passenger's "failure to protest" the driver's speeding or to request to be let out of the vehicle constituted comparative negligence is a question of fact for the jury], citing Nelson v. Nygren , 259 N.Y. 71, 181 N.E. 52 [1932] ; but see Oluwatayo v. Dulinayan , 142 A.D.3d 113, 118, 35 N.Y.S.3d 84 [1st Dept. 2016] [noting that parties should take care not to "conflate[ ] [claims] of freedom from culpability with defendants' alleged negligence"] ).
Recently, however, the Court of Appeals departed from earlier precedent by holding that "[t]o be entitled to partial summary judgment a plaintiff does not bear the double burden of establishing a prima facie case of defendant's liability and the absence of his or her own comparative fault" ( Rodriguez v. City , 31 N.Y.3d 312, 324-325, 76 N.Y.S.3d 898, 101 N.E.3d 366 [2018] ). This is because, the majority reasoned, "comparative negligence is not a defense to the cause of action of negligence, because it is not a defense to any element of plaintiff's prima facie cause of action for negligence, and is not a bar to plaintiff's recovery, but rather a diminishment of the amount of damages" ( id. at 320, 76 N.Y.S.3d 898, 101 N.E.3d 366 ).
Pre- Rodriguez , Plaintiff's statement that she "in no way contributed to the occurrence of this accident," (NYSCEF 56 ¶ 6), juxtaposed against Defendants' citation to Plaintiff's "smart" remark, may have justified denial of summary judgment until discovery could be conducted to uncover facts "essential to justify opposition"; to determine, in other words, what role the "smart" remark had, if any, in causing the accident ( CPLR 3212[f] ; see Collins v. McGinley , 158 A.D.2d 151, 153, 558 N.Y.S.2d 979 [3d Dept. 1990] [affirming jury's apportionment of 90% liability to driver and 10% to passenger for distracting driver just prior to accident]; Sartori v. Gregoire , 259 A.D.2d 1004, 688 N.Y.S.2d 295 [4th Dept. 1999] ["it is undisputed that third-party defendant had no verbal or physical contact with defendant once she started her vehicle and drove out of the parking lot onto the main road where the accident occurred" [emphasis added]]; Whalen v. Daugherty , 30 A.D.2d 604, 604, 290 N.Y.S.2d 3 [3d Dept. 1968] [passenger made "improper advances"] ).
Post- Rodriguez , however, outstanding discovery is not a barrier to partial summary judgment, particularly where the outstanding discovery would bear only on an issue that is irrelevant to Plaintiff's liability (see Tsyganash v. Auto Mall Fleet Mgt., Inc ., 163 A.D.3d 1033, 1034, 83 N.Y.S.3d 74 [2d Dept. 2018] [reversing denial of summary judgment by front car in rear-end collision case, holding that non-movants "failed to demonstrate how discovery may lead to relevant evidence or that facts essential to opposing the motion were exclusively within the plaintiff's knowledge or control"], citing Rodriguez , 31 N.Y.3d 312, 76 N.Y.S.3d 898, 101 N.E.3d 366 ;
Paget v. PCVST-DIL, LLC , 2019 N.Y. Slip Op. 31408[U], *6, 2019 WL 2176794 [Sup. Ct., N.Y. County 2019, Freed, J.] ; Lewis v. Cabrera , 2018 N.Y. Slip Op. 32833[U], *3, 2018 WL 5885520 [Sup. Ct., N.Y. County 2018, Silvera, J.] [granting motion for partial summary judgment to passenger in vehicle stopped for more than 5 seconds before rear-end collision, and holding that "the mere hope that evidence may be uncovered during the discovery process is not sufficient to defeat a motion for summary judgment"], citing Rodriguez , 31 N.Y.3d 312, 76 N.Y.S.3d 898, 101 N.E.3d 366 and Steinberg v. Abdul, 230 A.D.2d 633, 646 N.Y.S.2d 672 [1st Dept. 1996] ). It is therefore
The Court's holding should not be read to limit further discovery regarding the "smart" remark, as the issue may be raised at trial in the context of apportionment of damages.
ORDERED that Plaintiff's motion for partial summary judgment (004) is GRANTED; and it is further
ORDERED that the Clerk of Court shall enter judgment accordingly; and it is further
ORDERED that Plaintiff shall, within 30 days, e-file and serve a copy of this order with notice of entry upon all parties; and it is further ORDERED that the balance of the action shall continue, and the issue of damages shall be determined at trial; and it is further
ORDERED that within 30 days, the parties shall collaborate to resolve any outstanding discovery issues and e-file a discovery stipulation to be so-ordered. If the parties are unable to resolve any discovery issues, they may contact the Court to request a conference, identifying the unresolved issues and efforts to resolve them.
This constitutes the decision and order of the Court.