Opinion
64541/13
03-01-2016
Law Offices of Arnold I. Bernstein Attorney for Plaintiff MARIA REMEDIOS 599 West Hartsdale Avenue White Plains, New York 10607 Law Office of Gialleonardo & Rayhill Attorneys for Defendant CANDIDO REMEDIOS 565 Taxter Road - Suite 275 Elmsford, New York 10523 Fixler & LaGatutta, LLP Attorneys for Defendant ANNE SLOTWINER 120 Broadway - Suite 1350 New York, New York 10271
Law Offices of Arnold I. Bernstein Attorney for Plaintiff MARIA REMEDIOS 599 West Hartsdale Avenue White Plains, New York 10607 Law Office of Gialleonardo & Rayhill Attorneys for Defendant CANDIDO REMEDIOS 565 Taxter Road - Suite 275 Elmsford, New York 10523 Fixler & LaGatutta, LLP Attorneys for Defendant ANNE SLOTWINER 120 Broadway - Suite 1350 New York, New York 10271 David F. Everett, J.
The following papers were read on the motion: Notice of Motion/Aff in Supp/Exhibits A-L Aff in Opp/Exhibits1-2 Aff in Partial Opp /Exhibits A-E Aff in Reply/Exhibits A-B
Upon the forgoing papers, the motion for summary judgment is granted, and a hearing will be held to determine whether counsel's submission of contradictory sworn evidence to support a claim against Candido Remedios constitutes frivolous conduct, as defined under 22 NYCRR § 130-1.1 (c).
In this personal injury action, stemming from an automobile accident, defendant Candido Remedios moves, under motion sequence number 003, for an order, pursuant to CPLR 3212, granting summary judgment against his wife, the plaintiff Maria Remedios, on the issue of liability. The following facts are taken from the parties' pleadings, motion papers, affidavits, medical records, documentary evidence, and the record, and are undisputed unless otherwise indicated.
On January 14, 2013, at approximately 10:00 a.m., plaintiff was a passenger in a car being driven by her husband, defendant Candido Remedios. They were driving southbound in heavy traffic on the RFK Bridge in the City of New York, when a vehicle driven by Slotwiner struck the rear of their car. The police report prepared at the scene indicates that this was a rear end collision, that the cost of repairs to any one vehicle should not exceed $1,000.00, and that both vehicles left the scene on their own power (notice of motion, exhibit I).
By filing a summons and complaint on or about September 19, 2013, in the Office of the Westchester County Clerk, plaintiff commenced an action for damages against Slotwiner. In her complaint, plaintiff claimed that she sustained serious physical injuries as a result of Slotwiner's negligence. Issue was joined by service of Slotwiner's answer on or about January 2, 2014.
On March 3, 2013, and prior to discovery, plaintiff served a motion, under motion sequence No. 001, for an order granting summary judgment as to liability against Slotwiner. Plaintiff attorney's affirmation submitted in support of the motion affirms, in relevant part, that:
"CANDIDO REMEDIOS's vehicle was stopped for approximately one minute in the left lane in heavy traffic when a motor vehicle owned and operated by [Slotwiner], attempted to change lanes from the left lane into the middle lane. Defendant [Slotwiner] was unsuccessful in her attempt to switch into the middle lane as there was a fire truck in the middle lane, which caused [Slotwiner], to veer back into the left lane behind, CANDIDO REMEDIOS's vehicle thereby striking the rear of the vehicle in which Plaintiff was a passenger in as it proceeded Southbound on the RFK Bridge"(id. exhibit C). Plaintiff Maria Remedios' sworn affidavit in support of her summary judgment motion states, in relevant part, that:
"CANDIDO REMEDIOS's vehicle was stopped for approximately one minute in the left lane in heavy traffic when a motor vehicle owned and operated by [Slotwiner] attempted to change lanes from the left lane behind CANDIDO REMEDIOS's vehicle into the middle lane. Defendant [Slotwiner] was unsuccessful in her attempt to change lanes as there was a fire truck in the middle lane, which caused [Slotwiner] to veer back into the left lane behind, CANDIDO REMEDIOS's vehicle thereby striking the rear of the vehicle in which I was a passenger in as it proceeded Southbound on the RFK Bridge"(id. exhibit D).
In opposition to plaintiff's motion, Slotwiner argued that the motion should be denied as premature, because the parties had not yet begun the discovery. She argued that discovery was needed to determine, among other things, the accuracy of plaintiff's version of the events, notably, that the car in which she was a passenger had been stopped for approximately one minute prior to the time it was struck by Slotwiner's vehicle (reply aff, exhibit A).
In her reply papers, under motion sequence 001, plaintiff described Slotwiner's argument as "nothing more than an attempt to raise a feigned issue' in a misguided attempt to defeat summary judgment," since she was in a stopped vehicle that was struck from behind by Slotwiner's vehicle (id. exhibit B, ¶¶ 5, 6). Plaintiff asserted that any issues of comparative liability as between the drivers of the two vehicles should be left for resolution between Slotwiner and C. Remedios (id. ¶ 7).
By decision and order dated July 22, 2014 (Prior Order), the Honorable Robert DiBella, before whom the matter was then pending, granted plaintiff's motion for summary judgment. The motion court both noted and rejected Slotwiner's arguments that: (1) the motion is premature based on the lack of any discovery; and (2) a question of fact exists as to liability because plaintiff's car suddenly and abruptly stopped. In rejecting Slotwiner's discovery argument as merely speculative, the court noted the general rule that a rear-end collision driver's bald accusation that a lead driver made a sudden stop is insufficient to rebut the presumption of negligence of the following vehicle's driver (Kastritsios v Marcello, 84 AD3d 1174, 1174-1175 [2d Dept 2011]). The court ordered a trial on damages, and directed counsel to appear for a preliminary conference on August 4, 2014, to set a discovery schedule with respect to damages.
Five months after the court granted summary judgment in favor of plaintiff on the issue of liability, plaintiff filed a supplemental summons and amended verified complaint naming her husband Candido Remedios as a direct defendant in her personal injury/negligence action, claiming that he may be liable for all or part of her injuries (notice of motion, exhibit F, amended verified complaint, ¶ 12). C. Remedios joined issue by service of his verified answer with cross claim on or about February 17, 2015. Slotwiner did not implead C. Remedios by way of a third party action.
By so ordered compliance conference order dated February 17, 2015, all parties were to be deposed on or before April 30, 2015, and physical examinations completed on or before May 29, 2015. By so ordered compliance conference order dated May 5, 2015, time for completion of party depositions was extended to May 14, 2015, and time for physical examinations to be completed was extended to June 12, 2015. Slotwiner thereafter moved, under motion sequence No. 002, for an order, pursuant to CPLR 2221 (a), modifying the May 5, 2015 compliance conference order so as to state that she does not have to appear for an examination before trial on the question of liability based on Judge DiBella's finding against her on the issue of liability in his July 22, 2014 decision and order. The motion triggered a further compliance conference, which was held on May 15, 2015, with Court Attorney Referee David Markus. The order generated at the May 15, 2015 conference no longer contained a directive for Slotwiner to appear for deposition, and, as agreed, Slotwiner's attorney executed a concomitant stipulation on May 15, 2015, withdrawing the motion under motion sequence No. 002.
By notice of motion dated June 22, 2015, C. Remedios seeks an order dismissing the complaint as against him on the ground that the court already determined that Slotwiner was legally responsible for causing the accident. He points out that it was plaintiff who insisted on moving for summary judgment prior to discovery, and that she supported her motion with her own sworn statement attesting to the fact that her husband's vehicle was in a stopped position for approximately one minute before it was struck by Slotwiner's vehicle. Based on the undisputed procedural posture of the case, it is C. Remedios's position that the issue has already been resolved, and that plaintiff is precluded, by the equitable doctrines of collateral estoppel and res judicata, from relitigating the question of liability for her injuries. C. Remedios also seeks an award of costs and sanctions against plaintiff's counsel for refusing to discontinue the action as against him on theses grounds, and necessitating the instant motion.
In opposition to C. Remedios' motion, plaintiff, by her counsel, quotes from that part of Slotwiner's affidavit (which was submitted in opposition to plaintiff's summary judgment motion) that asserts that "the vehicle that she was a passenger in was not stopped for approximately one minute," and that "plaintiff's vehicle made a sudden and abrupt stop" (plaintiff aff, exhibit 1 - Slotwiner aff, ¶ 4). Arguing that there are issues of fact as to comparative negligence between the two defendants, and that depositions of Slotwiner and Remedios would shed light on the issue of C. Remedios' liability, plaintiff seeks a denial of C. Remedios' motion. Furthermore, and despite resolution of the issue at the May 15, 2015 compliance conference, plaintiff demands the right to conduct the depositions, consistent with the May 5, 2015 so ordered compliance conference order.
Slotwiner submits an affirmation in partial opposition to C. Remedios' motion, objecting strenuously to plaintiff's attempt to relitigate the question of her deposition. Slotwiner points out that her motion was, by agreement, withdrawn after the parties presented their opposing positions to Court Attorney Referee David Markus on May 15, 2015, and a comprehensive further compliance conference order was issued the same day omitting any directive compelling her to appear for a deposition. On this basis, Slotwiner opposes plaintiff's attempt to circumvent the May 15, 2015 discovery order. Slotwiner takes no position on that aspect of the motion that seeks a dismissal of the complaint as against C. Remedios.
It is well settled law in New York that res judicata operates to bar not only matters that were actually put into issue in a prior action or dispositive motion, but it also operates to bar matters that might have been included in the prior proceeding. In Schuylkill Fuel Corp. v Nieberg Realty Corp. (250 NY 304, 306-307 [1929]), Chief Judge Benjamin N. Cardozo addressed this issue, stating:
"[a] judgment in one action is conclusive in a later one, nt [sic] only as to any matters actually litigated therein, but also as to any that might have been so litigated, when the two causes of action have such a measure of identity that a different judgment in the second would destroy or impair rights or interests established by the first."
In his New York Practice treatise, David D. Siegel explains:
"[i]n New York an order entered on a motion is ordinarily entitled to the same res judicata and collateral estoppel treatment that a judgment gets, as long as the other requisites of those doctrines — finality, opportunity to contest, identity of issue, etc. — are met. This is especially significant when the order made on the motion is dispositive rather than interlocutory or intermediate. An order granting a motion for summary judgment, for example, should get res judicata treatment in an attempted second action"(Siegel, NY Prac § 445 at 719 [5th ed 2015] [n omitted]). Furthermore, and as relevant here: "[i]n applying the preclusion doctrines to an order, one must of course be mindful of the ground on which the order rests. An order granting a motion for summary judgment based on the overall merits of the case will get full claim preclusion treatment" (id. at 720).
The Prior Order constitutes a determination on the merits because it resolved a motion brought to determine liability for the accident occurring on January 14, 2013. The Prior Order was based on the representations made by plaintiff and her attorney. The Court also notes that, even after she commenced her action against her husband, plaintiff gave sworn testimony to the effect that the vehicle she was riding in was in a stopped position before the impact occurred (plaintiff tr at 48). On that testimony alone, summary judgment should be granted.
Judge DiBella properly granted plaintiff's summary judgment motion because there were no questions of fact for a jury to resolve with respect to liability for her alleged injuries, and res judicata "forbids relitigation of the matter as an unjustifiable duplication, an unwarranted burden on the courts, as well as on opposing parties" (id., § 442 at 714). Accordingly, C. Remedios is entitled to a summary judgment dismissal of the complaint as against him.
The Court also finds merit in that aspect of the motion that seeks an award of costs and sanctions against plaintiff's counsel for refusing to discontinue the ill-conceived action against him, and necessitating the filing of the instant motion. The Court is troubled by plaintiff counsel's submission of an amended verified complaint in which plaintiff swears to the veracity of the allegations accusing her husband of negligence — despite having previously submitted plaintiff's sworn affidavit attesting to her husband's lack of culpable conduct — and by plaintiff counsel's submission of his own contradictory affirmed statements (see counsel's affirmation, motion sequence number 001; counsel's affirmation in opposition, motion sequence number 003). Inasmuch as plaintiff had a full and fair opportunity to litigate the issue of liability in her summary judgment (motion sequence 001), and the evidence she now submits to the Court in opposition to the motion contradicts both her prior statements, including her deposition testimony, and the finding of liability set forth in the Prior Order, the Court deems it appropriate to hold a hearing on the issue of reasonable attorneys' fees and sanctions against plaintiff's counsel.
At a recent conference, the Court offered plaintiff counsel an opportunity to withdraw the action as against C. Remedios prior to its consideration of the motion. Plaintiff counsel declined.
Accordingly, it is
ORDERED that the motion of defendant Candido Remedios to dismiss the complaint herein is granted and the complaint is dismissed in its entirety as against said defendant, with costs and disbursements to said defendant as taxed by the Clerk of the Court, and the Clerk is directed to enter judgment accordingly in favor of defendant Candido Remedios; and it is further
ORDERED that the action is severed and continued against the remaining defendant Anne Slotwiner; and it is further
ORDERED that counsel shall appear on Thursday, March 17, 2016, at 2:00 p.m., in courtroom 301, at the Westchester Supreme and County Courthouse, 111 Dr. Martin Luther King, Jr. Boulevard, White Plains, New York 10605, for a hearing to determine: whether the Law Offices of Arnold I. Bernstein, in its representation of plaintiff, engaged in frivolous conduct as defined in the Rules of the Chief Administrator, 22 NYCRR § 130-1.1 (c); whether costs in the form of reimbursement for actual costs reasonably incurred and reasonable attorney's fees, resulting from frivolous conduct of the Law Offices of Arnold I. Bernstein, in its representation of plaintiff, should be awarded to defendant, represented by the Law Office of Gialleonardo & Rayhill; and whether the Law Offices of Arnold I. Bernstein, in its representation of plaintiff, should pay a sanction for such frivolous conduct to the Lawyer's Fund for Client Protection, 119 Washington Avenue, Albany, New York 12210.
This constitutes the decision and order of the Court. Dated: White Plains, New York March 1, 2016 HON. DAVID F. EVERETT, A.J.S.C.