Opinion
No. 114357–2008.
2010-09-14
Armando REINOSO v. Barry W. BRAGG.
Brand Brand Nomberg & Rosembaum, LLP, Thomas S. Pardo, Esq., New York, for Plaintiff. Abrams, Gorelick, Friedman & Jacobson, P.C., James E. Kimmel, Esq ., New York, for Defendant.
Brand Brand Nomberg & Rosembaum, LLP, Thomas S. Pardo, Esq., New York, for Plaintiff. Abrams, Gorelick, Friedman & Jacobson, P.C., James E. Kimmel, Esq ., New York, for Defendant.
GEORGE J. SILVER, J.
Plaintiff Armando Reinoso (“plaintiff”) commenced this action against defendant Barry W. Bragg (“defendant”) seeking to recover for personal injuries allegedly sustained in a motor vehicle accident. Plaintiff alleges in his complaint that on February 8, 2008, he was involved in a motor vehicle accident which occurred at West 47th Street, between 11th and 12th Avenues in New York County. Plaintiff alleges that he was standing next to a stopped taxi-cab, which was operated by a non-party, when he was struck by a U–Haul trailer that was attached to defendant's 2007 Toyota. Defendant's Toyota had a Canadian license plate. Defendant now moves pursuant to CPLR § 3212 for an order dismissing plaintiff's complaint on the ground that he is entitled to diplomatic immunity through the diplomatic status of his wife, a United Nations Assistant Secretary–General, under the terms of the Vienna Convention on Diplomatic Relations (“VDCR”).
In support of the motion defendant avers that his wife, Catherine W. Bragg, whom he married in 1977 and has remained married to continuously since, was appointed the position of United Nations Assistant Secretary–General for Humanitarian Affairs and Deputy Emergency Relief Coordinator by the United Nations Secretary–General in a Letter of Appointment dated January 15, 2008. The letter of appointment from the United Nations Secretary–General Ki Moon Ban, dated January 15, 2008, states “Dear Ms. Bragg, I am pleased to offer you an appointment as an Assistant Secretary–General in the Secretariat of the United Nations. This will be a fixed-term appointment, in accordance with the terms and conditions specified below....” The letter also states that the effective date of the appointment is February 11, 2008. According to defendant, on January 24, 2008 he and his wife went to the United States Embassy in Ottawa, Ontario, Canada to obtain United States diplomatic visas. Defendant contends that the United States Department of State issued him and his wife G–4 diplomatic visas on January 25, 2008 and argues that these visas reflect the diplomatic status conferred upon him and his wife pursuant to her appoint as a United Nations Assistant Secretary–General. In further support of his motion, defendant submits copies of his wife's diplomatic appointment letter, his passport, his marriage certificate and his United States Department of State Diplomatic Identification Card Defendant's Canadian passport contains a stamp from the Department of Homeland Security apparently denoting defendant's “G–4” status. Defendant's Diplomatic Identification card notes his status as a family member of UN official. Defendant also claims that he “consulted” with the United States Department of State which confirmed that he is immune from liability.
In opposition, plaintiff argues that the documents offered by defendant in support of the motion are uncertified and, therefore, inadmissible. Thus, plaintiff contends that there is no admissible proof that defendant's wife received a diplomatic appointment from the United Nations, that she actually accepted such an appointment, that she was a diplomat on the date of the underlying accident and the date the instant action was commenced, that defendant and his wife were still married on the date of the underlying accident or the date the instant action was commenced, or that the accident involved any act performed by a United Nations employee acting within the scope of their official capacity. According to plaintiff, defendant could have established his wife's employment and diplomatic status with the United Nations in two ways-through a sworn affidavit from a United Nations official and/or defendant's wife herself. Alternatively, plaintiff argues that even if defendant established his diplomatic immunity through admissible evidence, dismissal of this action with prejudice is inappropriate because the applicable three year statute of limitations does not expire until February 9, 2011, by which point defendant's wife may no longer by a diplomat or defendant and his wife may no longer be married, thereby lifting all diplomatic immunity afforded to defendant.
In reply, defendant proffers new evidence to establish the diplomatic status of his wife. Defendant offers a UN Press Release issued on December 13, 2007 which states that Catherine Bragg was appointed by United Nations Secretary–General Ban Ki–Moon, as Assistant Secretary–General. Defendant also directs the court to various internet websites, one of which purportedly contains a United Nations video recorded on March 2, 2010 of a Chilean earthquake in which Catherine Bragg is featured. It should be noted that the parties agreed in a stipulation dated April 7, 2010 that defendant would not submit new evidence in his reply. Moreover, since it is improper for defendant to rely on new evidence in reply papers to meet his initial burden ( Yeum v. Clove Lakes Health Care and Rehabilitation Center, Inc., 2010 N.Y. Slip Op 1930 [2d Dept 2010] ) the court will not consider defendant's reply papers.
It is well-settled that on a motion for summary judgment, the moving party has the initial burden of demonstrating, by admissible evidence, its right to judgment (Bendik v. Dybowski, 227 A.D.2d 228 [1st Dept 1996] ). The burden of raising a triable question of fact then shifts to the opponent ( see Torkel v. NYU Hosps. Ctr., 63 AD3d 587, 592, 883 N.Y.S.2d 8 [1st Dept 2009] ). All of the evidence must be viewed in the light most favorable to the party opposing the motion and all reasonable inferences must be resolved in that party's favor ( Udoh v. Inwood Gardens, Inc., 2010 N.Y. Slip Op 1537 [1st Dept] ). Summary judgment is a drastic remedy that should only be employed where no doubt exists as to the absence of triable issues ( Leighton v. Leighton, 2007 N.Y. Slip Op 9667 [1st Dept] ). The key to such procedure is issue-finding, rather than issue-determination ( id.).
Diplomats enjoy immunity under various international treaties, including the United Nations Convention and the Vienna Convention. According to the U.S. State Department, “[t]he purpose of these privileges and immunities is not to benefit individuals but to ensure the efficient and effective performance of their official missions on behalf of their governments” (United States Department of State, Diplomatic and Consular Immunity: Guidance for Law Enforcement and Judicial Authorities 2 [1998 rev. ed.] ). A diplomatic agent is defined in the Article 1(e) of the Vienna Convention as “the head of the mission or a member of the diplomatic staff of the mission.” (VCDR, art 1[e] ). Article 105 of the United Nations Charter provides that the United Nations “shall enjoy ... such privileges and immunities as are necessary for the fulfillment of its purposes,” and that its officials “shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connection with the Organization.” Assistant Secretary–General's receive the privileges and immunities granted by the Vienna Convention (Brzak v. United Nations, 551 F.Supp.2d 313 [2008] ). Under Article 31 of VCDR current high officials enjoy immunity from criminal and civil jurisdiction, subject to limited exceptions ( id.) while former high officials enjoy continuing immunity with respect to acts performed ... in the exercise of [their] functions....” (VCDR art 31[1] ). Article 37 of VCDR also provides that “members of the family of a diplomatic agent forming part of his household shall, if they are not nationals of the receiving State, enjoy the privileges and immunities specified in Articles 29 to 36.” Under United States law, suits against United Nations' officials who are immune under the VCDR must be dismissed (Diplomatic Relations Act § 5, 22 USC 254d [1978] ).
Plaintiff cites People v. Leo, 103 Misc.2d 320 [Crim Ct, New York Co.1979] for the proposition that diplomatic immunity is not proved conclusively by the issuance of a visa. The similarities of this action and Leo are, however, minimal. In Leo, the defendant was seeking diplomatic immunity through the status of his wife as an economic advisor with the Permanent Mission of Equatorial New Guinea to the United Nations. The United Nations Headquarter Agreement was the law which governed Leo's wife's diplomatic status and Leo's immunity. The court held that the status of Leo's wife under the Headquarters Agreement could not be determined solely by an issuance of a G–4 Visa. Unlike the defendant in Leo, defendant herein has submitted more documents that he claims establish his diplomatic immunity than simply a visa or passport. However, defendant's documentation does not establish his prima facie entitlement to judgment as a matter of law. Defendant has not laid a foundation for the admission into evidence of the Appointment Letter as a business record. More importantly, even if the Appointment Letter was in admissible form, its terms unambiguously establish that defendant's wife's appointment was not effective until February 11, 2008. The underlying accident occurred on February 8, 2008. Thus, an obvious question of fact exists as to whether defendant's spouse, and derivatively, defendant, was diplomatically immune from plaintiff's action on the date of the accident. While defendant claims that his visa and passport denoting his G–4 status establish his entitlement to diplomatic immunity, defendant has not provided an affidavit from someone with personal knowledge or any other evidence in admissible form defining the term G–4. In the absence of such evidence the court can only speculate as to the meaning of G–4, which is inappropriate on a motion for summary judgment.
Accordingly, it is hereby
ORDERED that defendant's motion for summary judgment is denied with leave to renew after completion of discovery; and it is further
ORDERED that the parties are to appear for a preliminary conference on November 1, 2010 at the courthouse located at 80 Centre Street, New York, New York, Room 103 at 9:30 am; and it is further
ORDERED that defendant is to serve a copy of this order with notice of entry upon plaintiff within thirty (30) days of entry.
This constitutes the decision and order of the court.