Opinion
Index No. 511393/2022
09-22-2023
Rigoberto Roquel Mendoza, Plaintiff, v. Martin S. Gold and John Doe, a driver not yet identified, Defendants.
Elefterakis, Elefterakis & Panek, New York City (Andrey Demidov of counsel), for Plaintiff.
Unpublished Opinion
Elefterakis, Elefterakis & Panek, New York City (Andrey Demidov of counsel), for Plaintiff.
Aaron D. Maslow, J.
The following numbered papers were read on this motion:
Submitted by Plaintiff
NYSCEF Doc No. 8: Notice of Motion for Summary Judgment
NYSCEF Doc No. 9: Affirmation of Michael Gluck, Esq. in Support
NYSCEF Doc No. 10: Statement of Material Facts
NYSCEF Doc No. 11: Exhibit A - Plaintiff's Verified Bill of Particulars
NYSCEF Doc No. 12: Exhibit B - Summons and Verified Complaint
NYSCEF Doc No. 13: Exhibit C - Verified Answer of Defendant Martin S. Gold
NYSCEF Doc No. 14: Exhibit D - Purported Affidavit of Plaintiff Rigoberto Roquel Mendoza; Affirmation of Translation of David A. Bonilla, Esq.
NYSCEF Doc No. 15: Exhibit E - Photograph of Plaintiff's Bicycle
To be Submitted by the Court
NYSCEF Doc No. 23: Transcript of August 4, 2023 Oral Argument
The following documents submitted by Defendant Martin S. Gold on September 15, 2023 (42 days after oral argument), while the within motion was sub judice, are not considered inasmuch as they were not timely filed and no application to accept them or proffer explaining their untimeliness was submitted to this Court (see CPLR 2214, 22 NYCRR 202.8; Aneke v Parks, 197 A.D.3d 601 [2d Dept 2021]; Garner v Rosa Coplon Jewish Home & Infirmary, 189 A.D.3d 2105 [4th Dept 2020]; Evans v Perl, 19 Misc.3d 1119 [A], 2008 NY Slip Op 50775[U], *5 n 2 [Sup Ct, NY County 2008]; cf. Wilcox v Newark Valley Cent. School Dist., 107 A.D.3d 1127 [3d Dept 2013]):
NYSCEF Doc No. 17: Affirmation of Michael Nashak, Esq. in Opposition
NYSCEF Doc No. 18: Response to Statement of Material Facts
NYSCEF Doc No. 19: Exhibit A - Affidavit of Defendant Martin S. Gold
NYSCEF Doc No. 20: Exhibit B - Affidavit of John Auricchio
The Court takes note of Plaintiff's objection to Defendant's late submission set forth in NYSCEF Doc No. 21, the letter of Oliver R. Tobias, Esq. dated September 21, 2023.
Upon the foregoing papers and having heard oral argument on the record from appearing counsel, the within motion is determined as follows.
Background
This case arises from an event that transpired on January 2, 2022, at or near the intersection of Bay Parkway and East Third Street in the borough of Brooklyn (Kings County), New York. As alleged by Plaintiff Rigoberto Roquel Mendoza ("Plaintiff"), some time between 10:00 PM to 11:00 p.m., he was operating a bicycle on the public road. Near the intersection of Bay Parkway and East Third Street, Bay Parkway was a two-way, four-lane road with two lanes of traffic apportioned to each direction of travel. To the right of the two lanes, in either direction, there existed an unmarked shoulder that was commonly used for street parking. Bay Parkway was not outfitted with a separate marked bike lane for bicyclists to utilize on the road. (See generally NYSCEF Doc Nos. 10, Statement of Material Facts; NYSCEF Doc No. 12, Complaint; NYSCEF Doc No. 14, Plaintiff's Purported Affidavit.)
In Plaintiff's attached purported affidavit, which will be discussed further below, he purports to have been riding his bike on the right-hand side of Bay Parkway. He was traveling as near as possible to the parked vehicles at the time of the alleged incident. As Plaintiff passed the intersection of Bay Parkway and East Third Street, he observed a Hyundai sedan bearing New York State License Plate Number YAD43 parked in the shoulder and further observed that the vehicle's lights were off. Plaintiff contends that he attempted to pass the parked Hyundai on the driver's side. As Plaintiff began to pass the parked vehicle, the driver's door opened. The driver's door allegedly struck the front tire of Plaintiff's bicycle, causing Plaintiff to fall off his bike and strike the ground. The owner of the above-referenced Hyundai is alleged to be Defendant Martin S. Gold (hereinafter "Gold"). (See NYSCEF Doc No. 14, Plaintiff's Purported Affidavit ¶¶ 2-15.)
Plaintiff now moves for an order pursuant to CPLR § 3212, granting him partial summary judgment against Defendants on the issue of liability; dismissing Defendant Gold's affirmative defenses of limitation of liability (second), contributory negligence and culpable conduct (third), assumption of risk (sixth), failure to mitigate damages (seventh), and failure to utilize required safety equipment in violation of VTL § 1236 (eighth); and for such other relief as this Court deems proper (see NYSCEF Doc No. 8, Notice of Motion; NYSCEF Doc No. 9, Michael Gluck's Affirmation).
Applicable Legal Standards
This Court recognizes the steadfast principle that summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985]; Andre v Pomeroy, 35 N.Y.2d 361, 364 [1974]). The party moving for summary judgment must present a prima facie case of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form demonstrating the absence of material issues of fact, and the failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see CPLR 3212 [b]; Smalls v AJI Industries, Inc., 10 N.Y.3d 733 [2008]; Alvarez, 68 N.Y.2d at 324). Once a prima facie showing has been made, however, the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution or tender an acceptable excuse for the failure to do so (see Zuckerman v City of New York, 49 N.Y.2d 557 [1980]). If there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied (see Rotuba Extruders, Inc. v Ceppos, 46 N.Y.2d 223, 231 [1978]).
Plaintiff's Arguments
Plaintiff argues that he has established prima facie entitlement to summary judgment as a matter of law. Plaintiff cites to New York Vehicle and Traffic Law ("VTL") § 1214 for the proposition, "No person shall open the door of a motor vehicle on the side available to moving traffic unless and until it is reasonably safe to do so, and can be done without interfering with the movement of other traffic...." It is Plaintiff's contention that Defendant John Doe violated VTL § 1214 by opening the driver's side door in front of Plaintiff's bike. Thus, Plaintiff contends that Defendant Doe did not ascertain the reasonable safety of opening the vehicle door before doing so (see NYSCEF Doc No. 9, Michael Gluck's Affirmation ¶¶ 16, 21-20).
Plaintiff points to VTL § 388 to hold Defendant Gold liable for the negligent actions of the driver of Gold's vehicle. VTL § 388 (1) provides in relevant part, "Every owner of a vehicle used or operated in this state shall be liable and responsible for death or injuries to person or property resulting from negligence in the use or operation of such vehicle, in the business of such owner or otherwise, by any person using or operating the same with the permission, express or implied, of such owner." Plaintiff, citing to Han v BJ Laura & Son, Inc. (122 A.D.3d 591, 592 [2d Dept 2014]), argues that "VTL § 388 'creates a strong presumption that the driver of a vehicle is operating it with the owner's consent, which can only be rebutted by substantial evidence demonstrating that the vehicle was not operated with the owner's express or implied permission'" (NYSCEF Doc No. 9, Michael Gluck's Affirmation ¶ 19). Accordingly, it is Plaintiff's position that, absent any evidence to the contrary, this Court should find that Defendant Doe was operating Defendant Gold's vehicle with Defendant Gold's permission, thus facilitating vicarious liability attaching to Defendant Gold.
Plaintiff also preempts possible defense arguments. Plaintiff first notes that Defendant Doe's failure to see Plaintiff does not constitute a non-negligent excuse. Plaintiff cites to Montero v Henriquez (133 A.D.2d 677 [2d Dept 1987]) for the proposition that a failure to see what is there to be seen, in fact, constitutes negligence. Plaintiff posits that any argument regarding Defendant Doe's failure to see Plaintiff prior to the subject incident should be disregarded. (See NYSCEF Doc No. 9, Michael Gluck's Affirmation ¶¶ 30-31.) Plaintiff also postulates that an affidavit from Defendant Gold would be legally insufficient due to Defendant Gold's absence from the scene of the incident (see id. ¶ 32).
Plaintiff notes that the defense may attempt to argue that the present motion is untimely as discovery has not yet been completed. Plaintiff cites to various decisions, such as Lopez v WS Distrib., Inc. (34 A.D.3d 759 [2d Dept 2006]), and Arbizu v REM Transp., Inc. (20 A.D.3d 375 [2d Dept 2005]), in support of the contention that the defense cannot rely on conjecture as to discovery (see NYSCEF Doc No. 9, Michael Gluck's Affirmation ¶¶ 33-36).
Finally, Plaintiff argues that the defense's second, third, sixth, seventh and eighth affirmative defenses should be dismissed (see id. ¶ 37). Plaintiff argues that the second affirmative defense, referencing Article 16 of the CPLR, is inapplicable to the present action. Citing CPLR 1602 (6), Plaintiff posits that "Plaintiff seeks to hold Defendant liable for their use, operation, or ownership of a motor vehicle," and therefore the limitations of liability of a less-than-50%-tortfeasor would not be available to Gold (id. ¶ 38). As to the third affirmative defense, culpable conduct by Plaintiff, Plaintiff argues that he could not have avoided the accident as Doe opened the vehicle door "no more than a fraction of a second before the impact" (id. ¶ 39). Plaintiff next turns to the sixth affirmative defense, assumption of risk, and argues that "motorists travelling through public streets, as a general rule, do not assume the risk of other motorists negligently striking their vehicle" (id. ¶ 40). As to the seventh affirmative defense, failure to mitigate damages, Plaintiff argues that Plaintiff "in his affidavit, indicates that he was wearing a helmet at the time of the collision" (id. ¶ 41). Finally, Plaintiff turns to the eighth affirmative defense, alleging Plaintiff's failure to utilize proper safety equipment pursuant to VTL § 1236, and argues that Plaintiff, "in his affidavit, states that a headlight was affixed to his bicycle at the time of the incident" (id. ¶ 42).
Counselor Gluck's reference to "CPLR § 1602(1)(b)(6)" in paragraph 38 of his affirmation is an obvious error; presumably he intended to refer to subdivision 6 of CPLR 1602. There are no subordinate provisions of paragraph b of subdivision 1.
Plaintiff attached to the instant motion five exhibits: (1) Plaintiff's verified bill of particulars; (2) Plaintiff's summons and verified complaint; (3) Defendant's answer; (4) an affidavit purported to be authored and signed by Plaintiff himself; and (5) a photographic image which allegedly shows Plaintiff's bicycle following the accident. The photograph of the bicycle is authenticated in the attached purported affidavit of Plaintiff. (See NYSCEF Doc Nos. 11-15.)
Defendant Gold's Arguments
Defendant Gold, the only known defendant in this matter, did not file opposition to the instant motion prior to the motion having come before this Court for argument on August 4, 2023 (see supra at 1-2).
Discussion
It should come as no surprise that the New York Civil Practice Law and Rules dictate the standards and requirements that are to be met by attorneys when filing motions. Specifically, Article 21 of the CPLR discusses the filing of papers with rules pertaining to form, filing, and service, among other subjects (see CPLR 2101-2106). In this matter, Plaintiff's purported affidavit and photograph are inadmissible, thereby preventing Plaintiff from establishing a prima facie case in support of his motion.
The issue in this case which this Court finds itself compelled to address revolves around the factual evidence put forth by Plaintiff movant in support of his argument that he is entitled to judgment on liability and dismissal of various affirmative defenses. The crux of the matter involves Plaintiff's attached purported affidavit, submitted as NYSCEF Doc No. 14. CPLR § 2101 (b) provides, "Each paper served or filed shall be in the English language which, where practicable, shall be of ordinary usage. Where an affidavit or exhibit annexed to a paper served or filed is in a foreign language, it shall be accompanied by an English translation and an affidavit by the translator stating his qualifications and that the translation is accurate" (emphasis added). While the papers here are all in English, the purported affidavit of Plaintiff states that his native language is Spanish. Moreover, Plaintiff's affidavit noted that the affidavit had been translated from English to Spanish by an attorney at the firm representing him:
21. My native language is Spanish. This affidavit was translated from English to Spanish for me by one of the staff members at my attorney's office and I confirmed that the contents of my affidavit are true and accurate.(NYSCEF Doc No. 14, Plaintiff's Purported Affidavit ¶ 21.)
The final two pages within NYSCEF Doc No. 14 contain a document entitled "Affirmation of Translation." In the Affirmation of Translation, David A. Bonilla affirms that he is an attorney at the Plaintiff's firm, Elefterakis, Elefterakis & Panek, and that he is "fluent in both English and Spanish and can read and write fluently in both languages" (NYSCEF Doc No. 14, Affirmation of Translation ¶ 3). Counselor Bonilla further affirms, "I frequently translate[s] from English to Spanish and vice versa in connection with my work at Elefterakis, Elefterakis & Panek" (id.). Counselor Bonilla further attests to his work with respect to this motion:
An affirmation is a sworn statement made under the penalties or perjury while an affidavit necessitates notarization. In the instant matter, the translator's affirmation/affidavit is made both under the penalties of perjury and before a New York State licensed notary. Accordingly, distinctly identifying the questioned document is difficult, but, as is explained herein, unnecessary.
It may be noteworthy that Counselor Bonilla is not the attorney listed on the filings; rather it is Counselor Michael Gluck. Counselor Bonilla's apparent involvement in the matter is in the capacity as a translator between Plaintiff and the firm, Elefterakis, Elefterakis & Panek.
4. On February 16, 2023, I met and spoke with Plaintiff Rigoberto Roquel Mendoza.
5. On this date, I correctly and accurately translated the Affidavit of Plaintiff Rigoberto Roquel Mendoza to the best of my knowledge and ability.
6. After translating the affidavit for the Plaintiff, I asked him if he understood the affidavit, if the facts contained therein were true, and if he agreed with the affidavit.
7. The Plaintiff told me that he understood the affidavit, that the facts contained therein were true, and that he agreed with it.
8. I have read this affirmation before signing it and same is true and accurate to the best of my knowledge.(Id. ¶¶ 4-8.)
On August 4, 2023, Counselor Andrey Demidov appeared for oral argument on behalf of the firm of Elefterakis, Elefterakis & Panek, attorneys for Plaintiff. Counselor Demidov stated that it was Plaintiff's position that the Affirmation of Translation was sufficient as the translating party, Counselor Bonilla, is a native Spanish speaker. Further, Counselor Demidov reaffirmed that Plaintiff Mendoza is not a native English speaker. However, Counselor Demidov maintained that the affirmation was sufficient-that there was no case law indicating insufficiency. Further, Counselor Demidov stated that his firm never had an issue in the past regarding translations. This Court reserved decision. (See NYSCEF Doc No. 23, Transcript of Aug. 4, 2023 Oral Argument at 2, line 9 through 3, line 16.)
There was no appearance by Defendants.
Based on the CPLR and case law, this Court determines that counsel's arguments regarding the translation of Plaintiff's purported affidavit are unconvincing. As previously noted, CPLR 2101 (b) requires all filed documents to be English or "[w]here an affidavit or exhibit annexed to a paper served or filed is in a foreign language, it shall be accompanied by an English translation and an affidavit by the translator stating his qualifications and that the translation is accurate." The Second Department has clarified this requirement by holding that, even when an English affidavit has been filed, if the affidavit was translated for a signatory's understanding, an affidavit by the translator must be included (see Martinez v 123-16 Liberty Ave. Realty Corp., 47 A.D.3d 901 [2d Dept 2008] [affidavit filed by non-moving party inadmissible because affidavit had been translated by signatory's daughter from English to Korean to facilitate the signatory's understanding and no affidavit by translator had been filed]; accord Reyes v Arco Wentworth Mgt. Corp., 83 A.D.3d 47, 54 [2d Dept 2011] [English affidavit of party who testified at deposition with assistance of interpreter not accompanied by affidavit of qualified translator]). Here, both Plaintiff Mendoza's purported affidavit and Counselor Bonilla's affirmation admit that Plaintiff's affidavit was translated for his understanding. Accordingly, the filing must include an affidavit by the translator.
"This Court has held that the absence of a translator's affidavit, required of foreign-language witnesses, renders the witness's English-language affidavit facially defective and inadmissible (see Martinez v 123-16 Liberty Ave. Realty Corp., 47 A.D.3d 901, 902 [2008]). The requirement of CPLR 2101 (b) that affidavits of non-English-speaking witnesses be accompanied by a translator's affidavit setting forth the translator's qualifications and the accuracy of the English version submitted to the court makes sense. Summary judgment is a drastic remedy made in lieu of a trial which resolves the case as a matter of law (see Andre v Pomeroy, 35 N.Y.2d 361, 364 [1974]). Parties opposing a motion for summary judgment are required to proffer evidence that is in admissible form, with rare exceptions not applicable here. A witness at trial would not be permitted to testify in a foreign language, or to proffer documents in a foreign language, without the benefit of a sworn English-language translation (see Quispe v Lemle & Wolff, Inc., 266 A.D.2d 95, 96 [1999]; cf. People v Watkins, 12 A.D.3d 165, 166 [2004]), and there is no valid reason why a more relaxed evidentiary standard should govern summary judgment applications. Accordingly, the plaintiff's English-language affidavit, without a corresponding affidavit from a qualified translator, cannot be considered in opposition to Ramapo's motion." (Reyes, 83 A.D.3d at 54.)
As noted above, Plaintiff Mendoza's purported affidavit was not accompanied by an affidavit from a translator, but rather by a self-titled "Affirmation of Translation" from Counselor Bonilla. However, "The statement of an attorney admitted to practice in the courts of the state... who is not a party to an action, when subscribed and affirmed by him to be true under the penalties of perjury, may be served or filed in the action in lieu of and with the same force and effect as an affidavit" (CPLR 2106 [a]). This rule in the CPLR establishes that an attorney affirmation is equivalent to an affidavit and should be treated as such. Accordingly, the mere usage of an attorney affirmation in lieu of an affidavit is not cause for alarm.
Rather, the contents of the affirmation fall short of the CPLR's requirements. Rule 2101 (b) of the CPLR explicitly requires that the accompanying affidavit (or, in this case, the affirmation) include "[1][the translator's] qualifications and [2] that the translation is accurate." Looking first to the attestation of accuracy, the "Affirmation of Translation" states, "On this Date [February 22, 2023], I [Counselor Bonilla] correctly and accurately translated the Affidavit of Plaintiff Rigoberto Roquel Mendoza to the best of my knowledge and ability" (NYSCEF Doc No. 14, Affirmation of Translation ¶ 5). Counselor Bonilla's statement that the affidavit was translated accurately for Plaintiff meets the requirement set forth in Rule 2101.
However, an issue arises as to the first element of CPLR § 2101 (b)'s requirements. As noted above, it requires the affidavit-or in this case, the affirmation-to include the translator's qualifications. Generally, there is no standard as to what minimum qualifications are required (see Thomas F. Gleason, Prac Commentaries, McKinney's Cons Laws of NY, CPLR C2101:2). However, this Court agrees with the position of the court in Matter of S.A.B.G. (47 Misc.3d 812 [Fam Ct, Nassau County 2015]) in which it was determined that a translator stating that the translator was proficient in both English and Spanish was insufficient to establish the translator's qualifications. In fact, this Court previously deemed a similar document inadmissible due, in part, to the translator conclusorily noting that he was" 'familiar with the English and Swedish languages'" (Kingdom of Sweden v Pashkovski, - Misc.3d -, 2023 NY Slip Op 23202, *5 [Sup Ct, Kings County, July 10, 2023]). Insofar as qualifications, Counselor Bonilla simply states, "I [Counselor Bonilla] am fluent in both English and Spanish and can read and write fluently in both languages. I [Counselor Bonilla] frequently translate from English to Spanish and vice versa in connection with my work at Elefterakis, Elefterakis & Panek" (NYSCEF Doc No. 14, Affirmation of Translation ¶ 3). However, Counselor Bonilla remains silent as to how he became fluent-whether he grew up in a Spanish-speaking family, learned Spanish in school, ever practiced law in Spanish-speaking or predominantly Spanish-speaking jurisdictions, or received certifications, licenses, commendations, awards or anything acknowledging a Spanish language proficiency. Accordingly, taking his conclusory statement at face value, the "Affirmation of Translation" is insufficiently compliant with CPLR 2101 (b)'s requirements regarding translation.
"The court acknowledges that the statute does not require the translator to list what was translated, and does not require the translator to provide a complete translation, nor to provide an itemized list of their qualifications (see National Puerto Rican Day Parade, Inc. at 593-594). However, in the case at bar, the statement provided by the translator that she is 'proficient in both English and Spanish' is ambiguous, self-serving and insufficient to illustrate her qualifications. The translator failed to state her professional qualifications which render her suitable to translate the documents. The translator's statement that she is proficient can draw a multitude of inferences and the court will not conjecture on her level of proficiency or how her alleged proficiency was earned (see National Puerto Rican Day Parade, Inc. at 594 [distinguishing Martinez v 123-16 Liberty Avenue Realty Corp. (47 A.D.3d 901 [2d Dept 2008]), wherein the Court did not accept a translation, since one of the 'documents was translated by a party's family member, not a professional translator'])." (S.A.B.G., 47 Misc.3d at 814.)
The First Department has previously taken the position that a stated proficiency in a foreign language is sufficient to meet the qualifications requirement of CPLR § 2101 (See Natl. Puerto Rican Day Parade, Inc. v Casa Publs., Inc., 79 A.D.3d 592 [1st Dept 2010]). This Court recognizes this and adopts it as a persuasive holding. However, upon even a cursory review of the First Department's holding, it is evident that that case is disanalogous to the present matter. In Natl. Puerto Rican Day Parade, Inc., the court held that an affidavit stating that the translators of the document were" 'qualified professional[s],' competent in both Spanish and English, and that the translations were an 'accurate and complete rendering of the content of the original document,'" sufficed to meet the requirements under CPLR 2101 (b) (Natl. Puerto Rican Day Parade, Inc., 79 A.D.3d at 594). It is of the utmost importance, however, that the translators in that instance affirmed that they were professional translators. Here, Counselor Bonilla does not state that he is a trained professional translator. Counselor Bonilla only notes that he is an attorney with the firm representing the Plaintiff. Had Counselor Bonilla affirmed that he was a professional translator as well as an attorney, this Court may have looked more favorably on the "Affirmation of Translation." Nevertheless, this is not the case, and the holding of the First Department is inapplicable here.
Thus, the "Affirmation of Translation" as filed by Plaintiff Mendoza, does not meet the requirements set forth in CPLR 2101 (b). This renders Plaintiff's purported affidavit inadmissible for consideration by this Court. Additionally, since Plaintiff's affidavit is inadmissible, the photograph authenticated only by the affidavit, likewise is inadmissible. "A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit." (CPLR 3212 [b].) With Plaintiff's affidavit having been found inadmissible, leaving this Court to rely only on Counselor Gluck's affidavit, Plaintiff's motion must be denied (with an exception relating to the dismissal of Defendant Gold's second affirmative defense). Counselor Gluck has no personal knowledge of the incident except that which was related to him. "[W]here a motion for summary judgment is based solely upon an affidavit of someone with no personal knowledge of the facts, that circumstance generally presents only a ground for the denial of summary judgment..., not a ground to dismiss the action" (GMAC Mtge., LLC v Bisceglie, 109 A.D.3d 874, 877 [2d Dept 2013] [internal citation omitted]).
Therefore, this Court finds that Plaintiff, who moved for summary judgment, failed to tender sufficient evidence in admissible form demonstrating the absence of material issues of fact, and the failure to make such a showing requires denial of nearly all of the motion, regardless of the sufficiency, or lack, of opposing papers (see CPLR 3212 [b]; Smalls v AJI Industries, Inc., 10 N.Y.3d 733 [2008]; Alvarez, 68 N.Y.2d at 324).
This Court deems it important to comment upon the procedure by which counsels for parties are submitting affidavits on motions where the client's primary language is other than English, as occurred herein. Submitted have been English language affidavits accompanied by purported certifications that the affidavit was translated into the affiant's conversant language. However, this is not the contemplated procedure. It is clear the CPLR 2101 (b) contemplates that affiants shall submit their written affidavit evidence in their conversant language-not in English. The importance of this was recognized in Reyes v Arco Wentworth Mgt. Corp. (83 A.D.3d 47), cited supra at 6, where the Second Department acknowledged that one who testified at a deposition with the assistance of an interpreter needed his affidavit properly translated in compliance with said CPLR provision. The logical inference is that the affidavit should be in the conversant language, which "shall be accompanied by an English translation and an affidavit by the translator stating his qualifications and that the translation is accurate" (CPLR 2101 [b]).
In the case at bar, Plaintiff's counsel conceded that his client was not fluent in English-"That's correct, your Honor" (NYSCEF Doc No. 23, Transcript of Aug. 4, 2023 Oral Argument at 2, line 25). "My native language is Spanish," was in NYSCEF Doc No. 14, Plaintiff's Purported Affidavit, in paragraph 21. Plaintiff should have executed an affidavit written in the Spanish language because obviously he was not sufficiently conversant in English. A written Spanish language affidavit would have been the "affidavit" referred to in CPLR 3212 (b), which details the papers supporting a summary judgment motion. The translation into English with the translator's certification of the English version would have fit within the ambit of CPLR 3212 (b)'s "other available proof."
A final word of caution to all attorneys is also appropriate. It is this Court's recommendation that attorneys reconsider filing documents translated by themselves or members of their own firms. While there is nothing preventing attorneys from translating and filing documents with the proper affidavits/affirmations, this Court is of the opinion that said practice could lead to attorneys violating their ethical responsibilities. In Stella Szantova Giordano's It's All Greek to Me: Are Attorneys Who Engage in or Procure Legal Translation for Their Clients at Risk of Committing an Ethical Violation? (" It's All Greek to Me ") (31 Quinnipiac L Rev 447 [2013]), Counselor Giordano details exactly how an attorney translating a document for their client may lead to violations of the Model Rules of Professional Conduct. Counselor Giordano astutely notes that when attorneys translate a document for their client or prospective clients, said attorneys run the risk of violating MRPC Rules 1.1, 1.3, 1.4, and 3.7. Similar or identical rules have been adopted by New York State as part of the Rules of Professional Conduct. Counselor Giordano further points to a formal opinion of the Committee on Professional and Judicial Ethics of the Association of the Bar of the City of New York (see It's All Greek to Me n 52). In said opinion, the Committee recommends, "A lawyer who undertakes to represent a client with whom effective direct lawyer-client communication can only be maintained through an interpreter must consider the need for interpreter services and when necessary take steps to secure the services of a qualified interpreter" (NY City Bar Assn Comm on Prof Ethics Formal Op 1995-12 [1996] [emphasis added]). This Court is not accusing any of Plaintiff's attorneys of having violated any Rules of Professional Conduct. Rather, this Court is noting the presence of an issue regarding the submission into court of documents on behalf of clients accompanied by formal translations and/or certifications by the attorneys, an issue commented upon in Mainato v Franzosa Contr. Inc. (2020 NY Slip Op 34971(U), *4 n 4 [Sup Ct, Westchester County 2020]) as follows: "[C]ounsel's submission is self-serving and he cannot be deemed an independent professional translator for purposes of this case despite his perceived qualifications [citations omitted]."
To clarify, this Court has been and will continue to be a proponent of diversity in the legal profession. The benefits of employing diverse and/or multilingual attorneys and staff are considerable. (At the time of writing the present decision, all paid members of this Court's present Chambers are multilingual.) Multilingualism is important in a global legal profession as it facilitates representation and discussions with clients that may otherwise be needlessly difficult. However, filing sworn documents with the Court after having been translated by an attorney who is otherwise underqualified to translate a legal document can lead to issues in the representation.
Similar to the Model Rules of Professional Conduct, Rule 1.1 of the New York Rules of Professional Conduct pertains to competence of the attorney; Rule 1.3 deals with diligence of the attorney; Rule 1.4 establishes communication requirements; and Rule 3.7 pertains to when an attorney acts as a witness.
Defendant Gold's Second Affirmative Defense
Determination of Plaintiff's motion to dismiss Defendant Gold's second affirmative defense does not entail consideration of Plaintiff's purported affidavit as no factual issues are implicated.
The second affirmative defense asserted:
15. This party's responsibility for non-economic loss, if any, which is expressly denied herein, is less than 50% of any responsibility attributed to any tortfeasor, whether or not a party hereto, who is or may be responsible for the happening of plaintiff's alleged accident and, thus, this party is entitled to a limitation of damages as set forth in CPLR Article 16.(NYSCEF Doc No. 13, Answer ¶ 16.) This is an issue of law, which can be raised in an attorney's affirmation, as it was in Counselor Gluck's (see NYSCEF Doc No. 9, Michael Gluck's Affirmation ¶ 38). The injuries complained of allegedly resulted from the actions of an operator of a motor vehicle, so clearly the limited liability of persons jointly liable are inapplicable (see CPLR 1602 [6]). Plaintiff's request to dismiss Defendant Gold's second affirmative defense should be granted.
CPLR 1601 provides:
1. Notwithstanding any other provision of law, when a verdict or decision in an action or claim for personal injury is determined in favor of a claimant in an action involving two or more tortfeasors jointly liable or in a claim against the state and the liability of a defendant is found to be fifty percent or less of the total liability assigned to all persons liable, the liability of such defendant to the claimant for non-economic loss shall not exceed that defendant's equitable share determined in accordance with the relative culpability of each person causing or contributing to the total liability for non-economic loss; provided, however that the culpable conduct of any person not a party to the action shall not be considered in determining any equitable share herein if the claimant proves that with due diligence he or she was unable to obtain jurisdiction over such person in said action (or in a claim against the state, in a court of this state); and further provided that the culpable conduct of any person shall not be considered in determining any equitable share herein to the extent that action against such person is barred because the claimant has not sustained a "grave injury" as defined in section eleven of the workers' compensation law.
2. Nothing in this section shall be construed to affect or impair any right of a tortfeasor under section 15-108 of the general obligations law.
The applicable provisions of CPLR 1602 are as follows: The limitations set forth in this article [Article 16] shall: ... 6. not apply to any person held liable by reason of his use, operation, or ownership of a motor vehicle or motorcycle, as those terms are defined respectively in sections three hundred eleven and one hundred twenty-five of the vehicle and traffic law.
Conclusion
The present motion lacking sufficient supporting factual evidence to make out a prima facie case of entitlement to nearly all the relief sought, it is hereby ORDERED as follows:
(1) That portion of Plaintiff's motion seeking to dismiss Defendant Gold's second affirmative defense is GRANTED.
(2) The remaining portions of Plaintiff's motion-seeking summary judgment on the issue of liability and seeking dismissal of Defendant Gold's third, sixth, seventh, and eighth affirmative defenses-are DENIED.