Opinion
06-19243.
February 11, 2009.
KEVIN M. FOX, PLLC, Attorneys for Plaintiff.
MAZZARA SMALL, P.C., Attorneys for Defendants/Third-Party Plaintiffs.
LOCCISANO LARKIN, Attorneys for Defendant Patricia A. Durali.
GOLD, STEWART, KRAVATZ, BENES STONE, LLP, Attorneys for Third-Party Defendant Jaime Meise.
Upon the following papers numbered 1 to 23 read on this motion for summary judgment; Notice of Motion/ Order to Show Cause and supporting papers 1-10; Notice of Cross Motion and supporting papers __; Answering Affidavits and supporting papers 11 — 14; Replying Affidavits and supporting papers 15 — 18; 19 — 23; Other Third-Party plaintiff's opposition to this affirmation in support of defendant's motion to dismiss third-party complaint; (and after hearing counsel in support and opposed to the motion) it is,
ORDERED that third-party defendant's motion for summary judgment dismissing the third-party complaint is granted.
Plaintiff Christine Vitale commenced this action to recover damages for the wrongful death of her husband and the father of her minor children, Mark Vitale, who died as a result of injuries he sustained during a motorcycle accident that took place on March 29, 2006 on Veteran's Highway in Smithtown, New York. The accident occurred while the decedent was riding westbound on Veteran's Highway parallel to fellow rider, third-party defendant Jamie Meise, when he struck the back of a trailer attached to a landscaping truck owned by defendant /third-party plaintiff Ahmet Durali. On the day of the accident, the landscaping truck was being driven by defendant/third-party plaintiff Carlos Guzman, who allegedly made a sudden left turn across Veteran's Highway and blocked the westbound lane in which the decedent was riding. Following the commencement of plaintiff's action against them, Durali and Guzman instituted a third-party action against Meise based on the theory of concerted action liability, alleging that Meise was contributorily negligent in causing the decedent's death, as he was engaged in a race with the decedent at the time of the accident.
Meise now moves for summary judgment dismissing the third-party complaint on the ground that Durali and Guzman have failed to submit any evidence that he was engaged in a race with the decedent at the time of the collision. Meise also contends that to allow third-party plaintiffs to seek contribution from him under the tort doctrine of concerted action liability would improperly permit them to obtain a double discount by way of an off set against the decedent in the main action and an affirmative recovery in the third-party action. Meise further argues that the accident was caused solely by the negligence of Guzman, who failed to yield the right of way to the decedent. Plaintiff Vitale submits an affirmation in support of Meise's motion to dismiss the third-party complaint instituted against him. Among other things, Vitale argues that there is no evidence that the decedent and Meise were engaged in a race at the time of the accident, and that even if third-party plaintiffs adduced such evidence, the only parties that could make such a claim against Meise are third persons who were injured as a result of the contest. In support of his motion Meise submits, inter alia, copies of the pleadings, transcripts of the parties' deposition testimony, and a copy of Guzman's post accident statement to the police. Plaintiff Vitale's supporting affirmation contains photographs and a diagram of the scene of the accident, as well as the transcript of non-party witness Phillip Scandaliato's deposition testimony.
In opposition, Durali and Guzman argue that Meise's motion for summary judgment should be denied, as there are issues of fact as to whether the parties were engaged in a race at the time of the accident and whether they could have avoided the accident. Third-party plaintiffs submit the notarized statements of witnesses interviewed by the Suffolk Police Department and the sworn deposition testimony of non-party witness Malcolm Wade, who asserted that he believed the motorcyclists were racing when he observed them prior to the accident.
At his deposition, Guzman testified that he was attempting to make a left turn from a northbound turning lane across Veterans Highway on to Dorset Way at the time of the accident. Guzman testified that he was stopped and that as he was attempting to turn he observed a car and two motorcycles behind it traveling west in the right lane of Veterans Highway. Guzman testified that at the time he began making the left turn he believed that the car was approximately 650 feet away car and that the motorcyclists had moved from behind the car and pulled even with it. Guzman testified that his vehicle accelerated to 15 miles per hour during the turn, and that he heard the sound of braking and the impact before he came to a stop. He testified that after the accident the landscaping truck was on Dorset Way and the trailer, which had passed the two westbound lanes of Veterans' Highway, was lodged on the shoulder of the road. He also testified that one or two seconds elapsed between the time he heard the sound of screeching brakes and the time he felt the impact. Guzman further testified that he could not tell whether motorcyclists were talking to each other while they were riding.
During his examination before trial, defendant Meise testified that it was customary for him to ride parallel to Vitale while they were riding their motorcycles together on the road and that they rode in that formation because it increased their safety and allowed them to cruise together. Meise testified that the only time they pulled ahead of each other was in order to pass a car and that on the day of the accident neither of them exceeded 65 miles per hour. Meise testified that while his wheel raised off the street when he accelerated, neither himself nor Vitale rode on the soft shoulder of the road or popped "wheelies" on the day of the accident. He also testified that when either of them passed a car, the rider in front would slow his rate of speed until the other pulled parallel again. Meise testified that they were stopped at a traffic signal for approximately 30 seconds before the accident and that during that time they did not rev their engines, talk or gesture to each other. He further testified that they proceeded forward after the light turned green, and that the decedent accelerated past one car in order to pull parallel to him. Meise asserted that he observed the landscaping truck for the first time while it was waiting to make a left turn and when it was approximately 500 feet away from him. He indicated that at that time Vitale was parallel to him and that they remained at a constant speed of approximately 65 miles per hour until Vitale attempted to stop in order to avoid colliding with the trailer. Meise testified that he applied his brakes as soon as the landscaping truck started to make the left turn onto Dorset Way and that he knew that the decedent also applied his break because he observed the decedent's motorcycle skidding and fish-tailing before the impact.
At his examination before trial, non-party witness Malcolm Wade testified that he was stopped next to the motorcycles at the traffic light at Wyandanch Boulevard and that he observed them riding next to each other after the traffic signal turned green. He testified that he accelerated to approximately 65 miles per hour and that the motorcyclists were "popping wheelies" next to him until they dropped their tires and proceeded out of his sight. Wade testified that while he was not an expert at speed he believed that the motorcyclists were riding in excess of 100 miles per hour after they proceeded out of his sight.
In a sworn statement given to the Suffolk County Police on the date of the accident, non-party witness Linda Delia stated that she observed the accident after the motorcycle in the right lane in front of her attempt to stop before colliding with a landscaping truck making a left turn onto Dorset Way. She also stated that she observed the motorcycles at the traffic light and that the sound of them passing her caused her to jump.
In his sworn statement to the police, non-party witness Phillip Scandaliato stated that he did not observe the accident. He indicated that prior to the accident he observed the motorcyclists "popping wheelies" and riding at a high rate of speed of approximately 80 or 85 miles per hour. During his deposition Scandaliato testified that when he observed the motorcyclists heading toward the intersection of Dorset Way and Veterans Highway they were traveling with the flow of traffic and had reduced their speed to approximately 60 or 65 miles per hour. Scandaliato asserted that the motorcyclist were traveling with the flow of the traffic at the time of the accident as the larger number of cars between Wyandanch and Dorset Way prevented them from reaching a greater speed.
On a motion for summary judgment, the movant bears the initial burden of establishing his cause of action or defense sufficiently to warrant the court to direct judgment in his favor as a matter of law. Once the movant meets this burden, the burden shifts to the opposing party to show by tender of sufficient facts in admissible form that triable issues of fact remain which preclude summary judgment in the movant's favor ( see Altieri v Golub Corporation , 292 AD2d 734, 741 NYS2d 126). However, in opposing a summary judgment motion, mere conclusions, unsubstantiated allegations or assertions are insufficient to raise triable issues of fact ( see Zuckerman v New York , 497 NYS2d 557, 427 NYS2d 595). In determining a motion for summary judgment, the court's function is not to resolve issues of fact or to determine matters of credibility but rather to determine whether issues of fact exist precluding summary judgment ( see Roth v Barreto , 289 AD2d 557, 735 NYS2d 197; O'Neill v Fishkill, 134 AD2d 487, 521 NYS2d 272).
The theory of concerted action provides for joint and several liability on the part of all defendants having an understanding, express or tacit, to participate in a common plan or design to commit a tortious act ( see Rastelli v Goodyear Tire Rubber Co. , 79 NY2d 289, 582 NYS2d 373; Rodriguez v City of New York , 35 AD3d 702, 827 NYS2d 220 [2d Dept 2006]; Shea v Kelly , 121 AD2d 620, 503 NYS2d 649 [2d Dept 1986]). Mere parallel activity by co-defendants is insufficient to establish concerted action as the parties must engage in some overt act in furtherance of the alleged tort ( see Hymowitz v Eli Lily Co ., 73 NY2d 487, 541 NYS2d 941; Bichler v Eli Lilly Co. , 55 NY2d 571, 450 NYS2d 776; Rastelli v Goodyear Tire Rubber Co. , supra; Blakeslee v Wadsworth , 37 AD3d 1021, 831 NYS2d 556 [3d Dept 2007]; Abid v Edwards , 8 AD3d 510, 779 NYS2d 522 [2d Dept 2004]; Prough v Olmstead , 210 AD2d 603, 619 NYS2d 404 [3d Dept 1994]; Fariello v City of New York Bd. of Educ. , 199 AD2d 461, 606 NYS2d 20 [2d Dept 1993]; Herman v Westgate , 94 AD2d 938, 464 NYS2d 315 [4th Dept 1983]). While the existence of concerted action is generally a question of fact, speeding and racing are not concomitant acts and proof of speeding alone does not prove a race ( see Shea v Kelly , supra; Finn v Morgan , 46 AD2d 229, 298, 362 NYS2d 292 [2d Dept 1974]). Rather, there must be evidence of a challenge coupled with a response in speed and relative positioning that indicates acceptance of the challenge ( see Shea v Kelly , supra; Finn v Morgan , supra).
Here, Meise established his prima facie entitlement to summary judgment dismissing the third-party complaint against him by demonstrating that he was not engaged in a concerted speed contest with the decedent at the time of the fatal accident ( see Blakeslee v Wadsworth , supra; Prough v Olmstead , supra; Fariello v City of New York Bd. Of Educ ., supra; Shea v Kelly , supra). Meise testified that he and the decedent were not racing each other at the time of the accident. He also asserted that when he and the decedent stopped for the final time before the accident for a period of 30 seconds at the traffic signal located at Wyandanch Boulevard, neither of them revved their engines, talked or gestured to each other that they were interested in a race. Moreover, Guzman's deposition testimony that he observed the motorcyclist riding parallel to each other before he commenced turning on to Dorset Way confirms Meise's testimony that he and Vitale sought to remain parallel to each other whenever either of them passed a motor vehicle. In the absence of some overt act or evidence of a challenge coupled with a response in speed and relative positioning that indicates acceptance of the challenge, Meise and Vitale's parallel cycling is insufficient to establish that they were racing at the time of the accident ( see Bichler v Eli Lilly Co ., supra; Rastelli v Goodyear Tire Rubber Co. , supra; Abid v Edwards , supra).
In opposition Durali and Guzman failed to raise a triable issue as to whether recovery is available on a claim of concerted action liability ( see Blakeslee v Wadsworth , supra; Fariello v City of New York Bd. of Educ. , supra; Shea v Kelly , supra). Although the evidence submitted by third party plaintiffs shows that the motorcyclists were operating their motorcycles at high speeds and that they "popped wheelies," the testimony offered by the non-party witnesses does not support an inference of an intent to race between the motorcyclists or provide evidence of an overt act that they were participating in a race ( see Blakeslee v Wadsworth , supra; Shea v Kelly , supra). Indeed, in the absence of evidence from which an intent to race may be inferred, a jury would be required to speculate as to whether Meise and the decedent were racing at the time of the accident ( see Blakeslee v Wadsworth , supra; Prough v Olmstead , supra; Shea v Kelly , supra; cf Policastro v Savarese , 171 AD2d 849, 567 NYS2d 784 [2d Dept 1991]). Accordingly, defendant's motion for summary judgment dismissing the third-party complaint is granted.