Opinion
Docket No. 98-CV-0040E(F).
December 4, 2000
Mary Speedy Hajdu, Esq., c/o Burgett Robbins, Jamestown, NY., Attorney[s] For The Plaintiff[s].
Michael J. Kanaley, Jr., Esq., c/o Kenney, Kanaley, Shelton Liptak, Buffalo, NY., Neil R. Sherwood, Esq., c/o Cohen Lombardo, Buffalo, NY., Attorney[s] For The Defendants[s].
MEMORANDUM and ORDER
Plaintiff, who resides in the Province of Ontario, Canada, commenced this action January 15, 1998 claiming that a vehicle driven by Zimmerman had struck him as he had been walking across an intersection in Ellicottviile, N Y and that such caused him personal injury. An Amended Complaint was filed November 13, 1998. Jurisdiction is premised on 28 U.S.C. § 1332. Presently before this Court are the parties' competing motions for summary judgment made pursuant to Rule 56 of the Federal Rules of Civil Procedure ("FRCvP"). Plaintiff has moved for summary judgment on the basis that there is no dispute as to Zimmerman's negligence and that, because the corporate defendants are the owners of the offending vehicle within the meaning of Section 128 of New York's Vehicle and Traffic Law ("VT"), such defendants are liable for Zimmerman's operation of the van and plaintiff's injury pursuant to VT § 388. The corporate defendants have moved for summary judgment on the basis that, because Zimmerman had not had permission to use the vehicle, they cannot be held liable for his negligence. Corporate Defendants Mem. of Law at 3. Such motions will be granted in part and denied in part.
Preliminarily, the undersigned notes that plaintiff and defendants D.L. Peterson Trust ("the Trust"), Brown Williamson Tobacco Corporation ("Brown Williamson") and PHH FleetAmerica Corporation ("PHH") have failed to adhere to the Local Rules of Civil Procedure for the United States District Court for the Western District of New York ("LRCvP") in bringing the instant motions. Pursuant to LRCvP 56, upon the filing of any summary judgment motion the moving party shall annex "to the notice of motion a separate, short, and concise statement of the material facts as to which the moving party contends there is no genuine issue to be tried." Failure to comply with this rule may constitute grounds for denying the motion. See LRCvP 56 ("The motion for summary judgment may be denied if the movant fails to annex the statement required by this rule."). Despite such possible consequence, no party has submitted the required statement of facts. Given that the LRCvP are law — except insofar as inconsistent with the FRCvP — and are promulgated to further effectuate the purposes and spirit underlying the FRCvP, they are not "precatory meanderings to be adhered to or not as the parties so choose." Reimer v. Heritage Asset Management, No. 97-CV-0565E(SC), 1999 WL 409513, at *1 (W.D.N.Y June 16, 1999). However, such dereliction is not fatal to any party in this action inasmuch as the relevant facts are salient and relatively few in number. The undersigned will consider the substance of each movant's motion.
It is axiomatic that, pursuant to FRCvP 56, summary judgment "shall be rendered" if the record reveals "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A factual dispute is material if its resolution "might affect the outcome of the suit under the governing law" and is considered genuine if it reasonably could be resolved in favor of either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-250 (1986). Evidence submitted by the non-movant is to be believed and all justifiable inferences are to be resolved in that party's favor. Id. at 255. In order to defeat a properly supported motion for summary judgment there must, however, be evidence from which a jury could reasonably find for the non-movant. Id. at 252.
The relevant facts are as follows. Plaintiff's injuries stem from an accident that occurred December 17, 1996 when he was crossing a highway at an intersection and was struck by a vehicle operated by Zimmerman. This vehicle was a "company van" provided by Brown Williamson to Zimmerman s girlfriend, Margaret Scicchitano. Brown Williamson had leased this vehicle from PHH although title to the vehicle was held by the Trust. While there is nothing in the record which shows that the Trust or PHH had imposed any restrictions germane to this case on the use of the vehicle, it is uncontroverted that Scicchitano's use of the vehicle was subject to certain restrictions by Brown Williamson, including instructions not to allow unauthorized individuals to operate it. Zimmerman states that he was generally aware of this particular limitation but that, on the day of the accident, he "impulsively decided to take the van" to retrieve an antique table that he and Scicchitano had previously surveyed. Zimmerman Feb. 9, 1999 Dep. at 22. Further and when asked if he ever had had permission to drive the vehicle, Zimmerman unequivocally replied "No." Id. at 50. Scicchitano also testified that, from the time she began working for Brown Williamson, there were "a few times" when she reiterated to Zimmerman that he did not have permission to drive the vehicle. Scicchitano Dep. at 19.
Insofar as plaintiff has moved for summary judgment on the basis that there is no dispute as to Zimmerman's negligence, the undersigned notes that Zimmerman's counsel has submitted an affidavit which states that, prior to the discovery deadline passing in this action, a notice of deposition had been served upon plaintiff's counsel April 20, 1998 but that such deposition has yet to be taken. Sherwood Aff. ¶ ¶ 4-5. That said, Zimmerman's counsel argues, "there has been no opportunity to fully explore the issue of comparative negligence as it relates to the causation of this accident." Id. at ¶ 6. Consequently and because it appears from the affidavit that Zimmerman "cannot for reasons stated present by affidavit facts essential to justify the party's opposition," he essentially asks this Court, at this time, to hold such portion of plaintiff's motion in abeyance and order a continuance so that such deposition can be taken. FRCvP 56(f).
A party opposing a motion for summary judgment must generally file an affidavit explaining:
"1) the nature of the uncompleted discovery, i.e., what facts are sought and how they are to be obtained; and 2) how those facts are reasonably expected to create a genuine issue of material fact; and 3) what efforts the affiant has made to obtain those facts; and 4) why those efforts were unsuccessful."Burlington Coat Factory Warehouse Corp. v. Esprit De Corp., 769 F.2d 919, 926 (2d Cir. 1985). "[A] denial of access to relevant information weighs in favor of the party opposing a motion for summary judgment." Burlington, at 925.
Such relief, however, would not be proper in the instant case. While it is undoubtedly true that the "nonmoving party should not be `railroaded' into his offer of proof in opposition to summary judgment" and "[t]he nonmoving party must have `had the opportunity to discover information that is essential to opposition' to the motion for summary judgment" — Trebor Sportswear Co., Inc. v. The Limited Stores, Inc., 865 F.2d 506, 511 (2d Cir. 1989) —, "the trial court may properly deny further discovery if the nonmoving party has had a fully adequate opportunity for discovery." Ibid. In the case at hand, over twenty months had passed from the time that Zimmerman served his notice of deposition on plaintiff's counsel and the submission of the instant motion and at no interim time did such defendant ask this Court for assistance in compelling such deposition. Moreover, no argument has been made that Zimmerman did not have an opportunity to pursue this type of discovery. Accordingly, FRCvP 56(f) relief will not be granted.
Citations omitted.
Turning directly to the issue of Zimmerman's negligence, the submitted materials indicate that such defendant had failed to yield the right-of-way to a pedestrian in a crosswalk in violation of the VT. Specifically, the evidence shows that, while he was attempting to make a left turn from Route 219 onto Jefferson Street in Ellicotville, Zimmerman struck plaintiff as plaintiff was crossing with a green light. Plaintiff's Notice of Motion Exs. A-C. Such an act is in contravention of the VT and, being uncontested, establishes Zimmerman's culpability. See VT § 1111(a)(3) ("pedestrians facing any steady green signal may proceed across the roadway within any marked or unmarked crosswalk") and VT § 1146 ("Notwithstanding the provisions of any other law to the contrary, every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway and shall give warning by sounding the horn when necessary."). Moreover, where such culpability is uncontested, it is proper to grant summary judgment with regard to such in a plaintiff's favor. Accordingly, plaintiff's motion is granted with regard to establishing Zimmerman's negligence as a matter of law.
According to New York law, the owner of a motor vehicle will be held to be vicariously liable for the negligence of an operator who is using such vehicle with permission. VT § 388(1) ("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."). Being a term of art, an owner is defined as "[a] person, other than a lien holder, having the property in or title to a vehicle or vessel. The term includes a person entitled to the use and possession of a vehicle or vessel subject to a security interest in another person and also includes any lessee or bailee of a motor vehicle or vessel having the exclusive use thereof, under a lease or otherwise, for a period greater than thirty days." VT § 128. Where more than one party can be considered to be an owner, the resulting "liability under this section shall be joint and several." VT § 388(3). Insofar as the undisputed evidence shows that title to the vehicle was held by the Trust, that Brown Williamson was a lessee having exclusive use the vehicle for a period greater than thirty days and that PHH was the "legal and equitable owner" of the vehicle, each corporate defendant — and the Trust — is an owner within the meaning of VT § 128. See Plaintiff's Notice of Motion Exs. F, H; Kimberling Dep. at 13-14, 17-18.
VT § 388 "gives rise to a presumption that the vehicle is being operated with the owner's consent." Guerrieri v. Gray, 610 N.Y.S.2d 301, 302 (2d Dep't 1994). This "presumption may be rebutted by substantial evidence to the contrary." Ibid. Once the presumption is rebutted, it becomes "incumbent upon the parties opposing the motion to come forward with evidence, in admissible form, to demonstrate the existence of a question of fact." Ibid. It should be noted, however, that the corporate defendants' "burden of rebutting the presumption of permissive use with substantial evidence is not easy." Horvath Lindenhurst Auto Salvage, Inc., 104 F.3d 540, 542 (2d Cir. 1997). "The question of consent and authority ordinarily presents an issue of fact" — ibid. —, especially where "contradiction is impossible, but the truthfulness or accuracy the testimony of an interested witness is open to reasonable doubt." Rodak v. Longnecker, 673 N.Y.S.2d 998, 1000 (N.Y Sup.Ct. 1998). Insofar as it is not claimed that express permission was given to Zimmerman to operate the vehicle, this Court's attention focuses on whether evidence in the record presents an issue of fact as to the existence of implied permission.
In this action, the corporate defendants have presented uncontradicted evidence showing that Brown Williamson restricted the use of the vehicle exclusively to Scicchitano and, although those restrictions were not created by the Trust or PHH, "it is only reasonable that [the Trust and PHH] be allowed to stand in [Brown Williamson's] shoes with respect to any limitations" Brown Williamson had placed on the use of the vehicle. Porter v. Reynolds, No. 92 CIV 5095(SS), 1994 WL 24769, at *3 (S.D.N.Y Jan. 24, 1994). Consequently, this Court finds that, because unauthorized use of a vehicle generally negates an owner's liability for an accident occurring subsequent to a breach of the restriction and the existence of such restriction in the instant action is uncontroverted, the corporate defendants and the Trust have rebutted the presumption of consent under New York law. Id. at *2-3.
Inasmuch as the corporate defendants and the Trust have come forward with substantial evidence rebutting the presumption of consent, this presumption now drops out of the case. Buckingham v. Rapid Rental, Inc., 3 F. Supp.2d 479, 483 (S.D.N.Y 1998). Further and because there is "no competent evidence from which permission or authority could be inferred" — Barrett v. McNulty, 318 N.Y.S.2d 144, 145 (N.Y. 1970) — and because plaintiff has "failed to submit any evidence sufficient to raise a triable issue of fact as to permission," his claims cannot withstand the corporate defendants' and the Trust's motion for summary judgment. Bruno v. Privilegi, 539 N.Y.S.2d 403, 404 (2d Dep't 1989); see also Polsinelli v. Town of Rotterdam, 562 N.Y.S.2d 844 (3d Dep't 1990).
Plaintiff's reliance on Schulman v. Consolidated Edison Co., 447 N.Y.S.2d 722 (1st Dep't 1982), and similar cases is misplaced. Schulman, like the instant matter, was an action to recover damages from injuries wherein the tortfeasor — who was married to the vehicle's owner — had operated the vehicle without the permission of the owner. Nevertheless, the court found there was insufficient evidence to rebut the presumption of implied permission. Id. at 723. In making this conclusion, the court noted, inter alia, that the tortfeasor "could use the car whenever the wife did not need it" and "that on prior occasions he had used the car when the wife did not need it," resulting in "a course of conduct [which] had built up between the parties implying permissive use." Ibid. In the case at hand, there is no such evidence — i.e., no party alleges either that Zimmerman had been allowed to use the car when Scicchitano did not need it or that Zimmerman had ever operated the vehicle with the knowledge, or acquiescence, of any defendant. Motor Vehicle Accident Indemnification Corp. v. Continental Nat'l American Group Co., 35 N.Y.2d 260 (1974), is similarly unpersuasive. Therein, a party had rented a vehicle from a car rental agency and had agreed, by written contract, that the vehicle would not be operated by an unrelated person without permission of the car rental agency. Nevertheless, such party proceeded to give his consent to an unrelated third party who then became involved in an accident. The court ruled that, because restrictive clauses in rental and insurance contracts were in violation of public policy because they undermine the legislative rationale underlying VT § 388 and because the car agency should have known that the unauthorized transfer of possession could occur, the defendant had given constructive consent to the tortfeasor to operate the vehicle. Such a situation is in stark contrast to the facts in the instant matter. As stated previously, Zimmerman had never been given permission to operate the vehicle and no argument has been made stating that he was under an illusion that he could. In short, plaintiff's cases are simply inapplicable to the instant matter.
Accordingly, it is hereby ORDERED that plaintiff's motion seeking to establish Zimmerman's negligence is granted, that the corporate defendants' (and the Trust's) motion for summary judgment is granted, that such movants are dismissed from this case and that plaintiff's motion seeking to hold such movants, or any of them, liable for Zimmerman's alleged negligence is denied as moot.