Opinion
17016/04.
Decided May 30, 2006.
Trief Olk, Esqs., By: Joseph D. Monaco, Esq., New York, NY, Attorneys for Plaintiff.
Lewis Johs Avallone Aviles Kaufman, LLP, Lawrence Schiffman, Melville, NY, Attorneys for Defendant.
Bee Ready Fishbein Hatter Donovan, LLP, By: Robert M. Conti, Esq., Hann Auto Trust, Hann Financial Services Corporation, Mineola, NY, Attorneys for Defendant.
Daniel Schiffman, Third-Party Defendant Pro Se.
The motion by plaintiff for summary judgment on the issue of liability is granted. CPLR § 3212. The motion of the Hann defendants, improperly designated as a cross motion, ( See, CPLR § 2215 and Williams v. Sahay, 12 AD3d 366, 367 (2nd Dept. 2004)) against co-defendant Lawrence Schiffman on its cross claims for contractual indemnification, is granted. All other motions and cross motions are denied.
This action arises out of an automobile accident that took place in Nassau County, New York, on August 10, 2004. Plaintiff, a passenger in an automobile being driven by third-party defendant Daniel Schiffman, was injured when the vehicle struck a utility pole and a tree. The car was leased by defendant Lawrence Schiffman from the defendants Hann Financial Service Corp., and/or Hann Auto Trust, who, for the purpose of the submissions and this decision, are treated as a single defendant. Since defendant Lawrence H. Schiffman has by way of settlement been released by plaintiff, this motion by plaintiff is directed at Hann.
The police officer who investigated the accident testified at an examination before trial that the third-party defendant and driver of the vehicle stated to him after the accident that he "fell asleep" and struck a utility pole and a tree. The plaintiff who was herself sleeping saw and remembers nothing of the accident.
Hann's motion seeks summary judgment on its cross claims against its lessee for contractual indemnification pursuant to the terms of the auto lease, common law indemnification and contribution. Hann also opposes the plaintiff's motion on the grounds that a question of fact exists as to whether or not the driver was asleep and objects to the use in evidence of the examination before trial testimony of the investigating police officer, as well as his police accident report.
Since the police officer was acting within the scope of his duty in recording the driver's statement that he fell asleep and the statement is admissible as the admission of a party, it is appropriate to consider the police report ( Guevara v. Zaharakis, 303 AD2d 555 [2nd Dept. 2003]) especially where, as here, the statement made by the driver was reported by the police officer under oath at his examination before trial. See, Murray v. Donlan, 77 AD2d 337 (2nd Dept. 1980).
Moreover, the statement of having fallen asleep is admissible as an excited utterance and as a declaration against interest, even when the declarant is not a party. A statement may be admitted under the excited utterance exception to the hearsay rule when the declarant spoke while under the stress or influence of the excitement caused by an external event so that his reflective capacity was stilled. The decisive factor is whether the surrounding circumstances reasonably justify the conclusion that the remarks were not made under the impetus of studied reflection. People v. Moore, 173 AD2d 568 (2nd Dept. 1991). A declaration against interest is admissible even where the declarant is a non-party but is unavailable to testify. Here, the declarant driver is now a resident of Israel and is thus unavailable. Kelleher v. F.M.E. Auto Leasing Corp., 192 AD2d 581 (2nd Dept. 1993); Jamison v. Walker, 48 AD2d 320 (2nd Dept. 1975).
The testimony of the police officer is to the effect that he arrived at the scene within minutes of the accident and that the driver was lucid and plaintiff was lying on the ground screaming. The first question asked of the driver was an inquiry of what happened and his answer was immediate. Clearly these facts and circumstances support the conclusion that the driver's statement of falling asleep qualifies as an excited utterance, and as well as a declaration against interest. It is established law in this Department that a showing that a driver fell asleep while driving raises a rebuttable presumption of negligence since the onerous burden of establishing the circumstances under which he fell asleep would be a difficult, if not insurmountable burden for a plaintiff to overcome. It is then the defendant's burden to offer an explanation sufficient to create a triable issue of fact. Spivak v. Heyward, 248 AD2d 58, 60 (2nd Dept. 1998). Here, there has been no offer of a non-negligent explanation for the accident and thus, summary judgment is appropriate.
In any event, summary judgment should be granted in plaintiff's favor on the issue of liability even absent consideration of the driver's statement.
On motion for summary judgment, the movant must establish his or her cause of action or defense sufficient to warrant a court directing judgment in favor as a matter of law. Frank Corp. v. Federal Ins. Co., 70 NY2d 966 (1988); Alvarez v. Prospect Hosp., 68 NY2d 320 (1986); Rebecchi v. Whitmore, 172 AD2d 600 (2nd Dept. 1991). "The party opposing the motion, on the other hand, must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact." Frank Corp. v. Federal Ins. Co., supra; GTF Mktg. V. Colonial Aluminum Sales, 66 NY2d 965 (1985); Rebecchi v. Whitmore, supra. Mere conclusions or unsubstantiated allegations are insufficient to raise a triable issue. Frank Corp. v. Federal Ins. Co., supra.
Further, to grant summary judgment, it must clearly appear that no material triable issues of fact are presented. The burden on the court deciding this type of motion is not to resolve issues of fact or determine matters of credibility but merely to determine whether such issues exist. Barr v. County of Albany, 50 NY2d 247 (1980); Daliendo v. Johnson, 147 AD2d 312 (1989).
Plaintiff has established entitlement to judgment, thus shifting the burden to the defendant to rebut the movants case by submitting proof in evidentiary form showing the existence of triable issues of fact. Zuckerman v. City of New York, 49 NY2d 557 (1980); Friends of Animals v. Associated Fur Manufacturers, Inc., 46 NY2d 1065 (1979). The Court of Appeals has recently reviewed the applicability of the res ipsa loquitur doctrine to summary judgment motions and reinforced the notion that the rule creates an inference which is a brand of circumstantial evidence that may be sparingly used to support the grant of summary judgment in favor of a plaintiff. The facts in this case support one of those rare instances where the plaintiff's circumstantial proof is convincing and the response of the defendant so weak that the inference of the driver's negligence is inescapable. Morejon, c., v. Rais Construction Company, ___ NY3d ___ 2006 WL 122689.
In opposing plaintiff's instant application, defendant contends that there exists an issue of fact as to whether the driver fell asleep at the wheel, yet defendant fails to offer any non-negligent explanation for the accident. It is plain that the sole and only cause of the accident was the driver's failure to keep his vehicle under proper control on a dry, lit road with only a slight curve and under conditions that were not likely to be considered dangerous. A court is not obliged to ferret out speculative issues when a defendant has failed to come forward with sufficient evidence to create a triable issue of fact. O'Callaghan v. Flitter, 112 AD2d 1030 (2nd Dept. 1985).
Defendant further contends that plaintiff's motion is premature in that issues of comparative negligence as to the plaintiff passenger remain unknown, no deposition of the driver has been held and discovery is not complete. The suggestion by defendant that this motion cannot be defended because the driver has not been deposed is insufficient to deny this application. It is well settled that mere hope that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is not sufficient to deny summary judgment. Plotkin v. Franklin, 179 AD2d 746 (2nd Dept. 1992); Mazzaferro v. Barterama Corporation, 218 AD2d 643 (2nd Dept. 1995). Rulings across the Appellate Divisions have similarly held. Mackey v. Sangani, 238 AD2d 919 (4th Dept. 1997); Steinberg v. Abdul, 230 AD2d 633 (1st Dept. 1996); Ramesar v. State of New York, 224 AD2d 757 (3rd Dept. 1996); Younger v. Spartan Chemical Company, Inc., 252 AD2d 265 (3rd Dept. 1999).
Further, there is no issue of comparative fault on the part of plaintiff. The obligation of a passenger is to exercise reasonable care under the circumstances. A passenger is not required to warn the driver of every potential hazard and where a passenger may be found to be at fault, there was conduct on the part of the driver of which the passenger was aware and which might have imposed upon the passenger a duty to alert or admonish the driver. Knorr v. City of Albany, 68 AD2d 982 (3rd Dept. 1979). There is an absence of evidence that any failure by plaintiff to exercise reasonable care for her safety was a substantial factor in bringing about the accident. Petryszyn v. DiFulvio, 185 AD2d 405 (3rd Dept. 1992).
Although defendant does not claim that the driver was presented with a sudden emergency, that explanation would be unavailing. The emergency doctrine recognizes that when an actor is faced with a sudden and unexpected circumstance not of his or her own making, which leaves little or not time for thought, deliberation, or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be held negligent if the actions taken are reasonable and prudent in the emergency context, even if it later appears that the actor made a wrong decision. See, Rivera v. New York City Tr. Auth., 77 NY2d 322 (1991); Kuci v. Manhattan Bronx Surface Tr. Operating Auth., 88 NY2d 923 (1996). Here there was no qualifying event which justifies application of the emergency doctrine, since there is no evidence of any adverse road or traffic conditions. Caristo v. Sanzone, 96 NY2d 172 (2001).
Accordingly, the Court finds that the uncontroverted facts clearly establish that plaintiff was not negligent and that the negligence of the driver was the cause of the accident. Plaintiff's motion pursuant to CPLR § 3212 on the issue of liability only is thus granted. ( See, Vehicle and Traffic Law § 388)
Defendant Hann seeks summary judgment against defendant Lawrence H. Schiffman based on its lease agreement with that defendant that contains an indemnification provision in which Schiffman indemnifies Hann against any and all claims arising out of, inter alia, the use or operation of the vehicle. The lessee was also required to and did name the lessor as an additional insured on his liability insurance policy. However, the submission by Hann indicates that only the lessee is named as an insured and Hann is designated as a lienholder.
The lessee first claims that his rental agreement is not admissible because it fails to comport with CPLR § 4544, which requires contracts to be clear and legible or not less than eight points in depth or five and one-half points in depth for upper case type. This provision must be read in conjunction with CPLR § 105 (t) which specifically defines how type size is to be determined. In support of his contention the lessee has submitted an affidavit of an expert in the printing industry which concludes that the type size in the auto lease here is seven points.
To be sure, the evidentiary prohibition against documents not comporting with the requirement of the CPLR must be treated with deference to legislative intent ( Gulf Insurance Company v. Kanen, 13 AD3d 579 [2nd Dept. 2004]), and where there is noncompliance defenses may be interposed. General Electric Capital Auto Lease Inc., v. D'Agnese, 239 AD2d 462 (2nd Dept. 1997).
Here, however, the defendant Schiffman's expert fails to make a prima facie showing of statutory noncompliance because he fails to state that his measurements were made in accordance with the specifications of CPLR § 105 (t), and he fails to state whether he worked from a photocopy or the actual document that was signed by defendant. An expert's conclusions must not be based on speculation and should provide specific data. Romano v. Stanley, 90 NY2d 444 (1997); Duffen v. State, 245 AD2d 653 (3rd Dept. 1997); cf. Adamy v. Ziriakus, 92 NY2d 396 (1998).
Given the statutory mandate of CPLR § 105 (t), the defendant lessee has failed to raise an issue of fact sufficient to deny summary judgment on the basis of the type size of the auto lease agreement, and it is therefore appropriate to consider the merits of Hann's motion for summary judgment on its claim for indemnification.
The right to indemnity arises in cases such as this which involve vicarious liability, and permits a party held legally liable to a plaintiff to shift the loss to another who was responsible for the wrong. The right may be based on an express contract, such as the auto lease in this case, or it may be implied based upon the law's notion of what is fair and proper. The latter, or implied indemnity, invokes the concept of restitution and avoids the unjust enrichment which would result from a party being held responsible solely by operation of law because of its relation to the actual wrongdoer. Mas v. Two Bridges Associates, et al, 75 NY2d 680, 690 (1990).
In the context of automobile rental agreements, a vehicle owner/lessor may recover in indemnity from a negligent user/lessee even absent an express contractual provision, but recovery is limited to the amount in excess of the minimum amount of insurance coverage required to be carried by automobile owners. Morris v. Snappy Car Rental, Inc., 84 NY2d 21 (1994). In the same context it has been held that the so called antisubrogation rule, invoked by defendant lessee does not preclude an automobile lessor from enforcing its rights to indemnification. Elrac, Inc., v. Ward, 96 NY2d 58 (2001). More recently, the right of contractual indemnification has been upheld even where, as here, the lessee was not the driver and was not actively negligent. Such right to contractual indemnification is similarly not barred by the so called "antisubrogation rule." Tokio Marine and Fire Insurance Co., Ltd. v. Borgia, 11 AD3d 603, 604 (2nd Dept. 2004).
Finally, it is appropriate to grant summary judgment to Hann as to Schiffman at this juncture. Generally the right to indemnification must await a determination by the finder of fact ( see, e.g., Ciatto v. Lieberman, 1 AD3d 553 [2nd Dept. 2003]) or proof of negligence as a matter of law, ( Elrac Inc., v. Rudel, 233 AD2d 417 (2nd Dept. 1996) as well as payment by the party seeking indemnification. McDermott v. City of New York 50 NY2d 211, 216 (1980).
However, where the interests of justice and judicial economy dictate, a court may issue a conditional judgment of indemnification pending the outcome of the main action provided that there are no issues of fact regarding the potential negligence of the parties. State of New York v. Syracuse Rigging Company, Inc., 249 AD2d 758 (3rd Dept. 1998). Here, there are no questions of fact to be resolved on the issue of the negligence of the parties. Both Hann and Schiffman, the owner/lessor and registrant/lessee respectively may be vicariously liable for the actions of the driver but, as between them, lessee Schiffman is answerable to Hann based on his contractual indemnity. Lopez v. Markos, 245 AD2d 54 (1st Dept. 1997).
Hence Hann's motion for summary judgment against defendant Lawrence A. Schiffman based on the contractual indemnification provision of the lease agreement is conditionally granted, in an amount in excess of the minimum amount of liability insurance required to be carried.
This shall constitute the Decision and Order of this Court