Opinion
No. 5315/10.
2013-04-8
Michael LINSALATA, Plaintiff, v. Michael E. BERRY, Loving Care Agency Inc., and Chrysler Paramus of New Jersey, Defendants.
James T. Moriarty, Esq., New York, for Plaintiff. Law Offices of Susan B. Owens, White Plains, for Defendants.
James T. Moriarty, Esq., New York, for Plaintiff. Law Offices of Susan B. Owens, White Plains, for Defendants.
FRANCESCA E. CONNOLLY, J.
The following documents
were read in connection with defendants' motion for summary judgment:
Following the submission of defendants' reply affirmation, plaintiff submitted additional opposition to the motion by letter dated January 28, 2013. This letter is an impermissible sur-reply and is not considered by the Court in connection with the motion.
In this action for personal injuries arising out of a motor vehicle accident, the defendants move for an order pursuant to CPLR § 3212 granting them partial summary judgment. Specifically, defendants move to dismiss plaintiff's punitive damages claim against the driver of the vehicle, defendant Michael E. Berry (“Berry”). Defendants further move for summary judgment dismissing the complaint against Berry's employer, Loving Care Agency, Inc. (“Loving Care”), and against defendant Chrysler Paramus of New Jersey (“Chrysler”), the owner/lessor of the vehicle driven by Berry at the time of the accident.
FACTUAL BACKGROUND/PROCEDURAL HISTORY
Plaintiff commenced this personal injury action following a motor vehicle accident that occurred on March 3, 2007, at approximately 3:00 A.M., at the intersection of Mile Square Road and Central Park Avenue in Yonkers, New York. Plaintiff alleges that while at a full stop at the traffic light on Central Park Avenue, his vehicle was struck in the rear by the defendants' vehicle. The plaintiff testified that the force of the impact caused his driver's seat support struts to snap and his vehicle to be pushed approximately 100 feet past the intersection. As a result of the impact, plaintiff claims he fractured one rib and suffered soft tissue injuries to his neck and back. He lost four months from work as a result of the accident.
At the time of the accident, Berry was driving a vehicle owned by Chrysler and leased to his employer, Loving Care. Berry had been working for Loving Care for approximately seven months prior to the accident, and as part of his employment compensation package, Loving Care allowed Berry to use the vehicle. A copy of the lease agreement submitted by defendants in support of their motion indicates that on February 15, 2007, Loving Care entered into an agreement with Chrysler for the lease of a 2007 Chrysler 300. The lease term was for thirty-eight months. According to Berry, Loving Care determined that Berry was a licensed driver before releasing the vehicle to him.
Berry testified that on the evening of March 2–3, 2007 he had dinner at a friend's house where he consumed two glasses of red wine with dinner and two vodka martinis after dinner. Berry recalls leaving his friend's house and getting into his vehicle, but has no recollection of driving or any details of the accident. Berry testified that he was handcuffed at the scene of the accident, placed in a police car, and driven to the police station. The police asked Berry to take a blood test to determine his blood alcohol level, but he refused. He was transferred to the Valhalla jail where he remained for approximately seven days.
On the date of the accident, Berry believed he had a valid New York State driver's license. After his arrest, he learned that he had been driving with a suspended license at the time of the accident. At his deposition, Berry acknowledged that on July 12, 2006, less than one year prior to the accident, he received a ticket for refusing to submit to a chemical test. He denies this incident was in any way alcohol-related. He believed he received a fine for that offense, but did not pay it, resulting in a suspension of his driver's license. Berry also acknowledged that prior to the accident he had received a ticket for driving a vehicle without insurance. He failed to pay a fine in connection with this ticket as well, resulting in a suspension of his driver's license.
As a result of the motor vehicle accident and the multiple license suspensions, Berry pled guilty to driving while intoxicated and aggravated unlicensed operation of a motor vehicle, a felony. He received a total of five years probation; five for aggravated unlicensed operation of a motor vehicle and three for driving while intoxicated, to run concurrently.
Plaintiff seeks an award of punitive damages against Berry based upon his convictions of driving while intoxicated at the time of the accident and aggravated unlicensed operation of a motor vehicle, the severity of the impact and damage to plaintiff's vehicle and the severity of plaintiff's injuries, Berry's prior history of being charged with refusing to submit to a chemical test, and his prior license suspensions. Berry moves to have the punitive damages claim dismissed, arguing that such an award is not appropriate since he had never been accused of driving while intoxicated or impaired prior to the date of the accident, and any indication otherwise is based upon the fact that he has a common name.
Loving Care moves for summary judgment dismissing the claim against it sounding in negligent entrustment. Loving Care argues that since it determined that Berry was a licensed driver before releasing the vehicle to him and Loving Care had no special knowledge that Berry's use of the vehicle would be unreasonably dangerous, it is entitled to summary judgment on this cause of action.
Chrysler, the lessor of the vehicle, moves for summary judgment dismissing the action pursuant to the Graves Amendment, 49 USC § 30106, as it is an owner engaged in the trade or business of renting or leasing vehicles ( see Cluck v. Nebgen, 72 AD3d 1023 [2d Dept 2010] ). Plaintiff does not oppose this portion of the motion, affirming the parties previously entered into a stipulation discontinuing the action against Chrysler. The Court notes that the stipulation discontinuing action as against Chrysler was filed with the Westchester County Clerk on August 18, 2010 and therefore, this issue is moot.
LEGAL ANALYSIS/DISCUSSION
Summary Judgment Standard
“[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact” (Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324 [1980] ). “Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers” (Winegrad v. New York University Medical Center, 64 N.Y.2d 851, 853 [1985] ). “Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action” (Alvarez v. Prospect Hospital, 68 N.Y.2d at 324).
While the general rule is that a party opposing the motion must make a showing of evidentiary proof in admissible form, under certain circumstances, “courts have recognized that proof which might be inadmissible at trial may, nevertheless, be considered in opposition to a motion for summary judgment” (Guzman v. Strab Construction Corp., 228 A.D.2d 645 [2d Dept 1996] ). “Rules of evidence should be guardedly and cautiously applied on an application for summary judgment, particularly where there are many exceptions to general rules and where the application of a rule of evidence or the exceptions thereto can best be determined upon evidence offered at a trial” (Phillips v. Joseph Kantor & Co., 31 N.Y.2d 307, 311–312 [1972] ).
The papers submitted in support of and in opposition to a motion for summary judgment must be examined in a light most favorable to the party opposing the motion and the motion must be denied if there is any doubt as to the existence of a triable issue of fact ( see Rotuba Extruders, Inc. v. Ceppos, 46 N.Y.2d 223, 231 [1979];Martin v. Briggs, 235 A.D.2d 192, 196 [1st Dept 1997] ).
“Further, to grant summary judgment, it must clearly appear that no material triable issue of fact is presented. Where the court entertains any doubt as to whether a triable issue of fact exists, summary judgment should be denied” (Daliendo v. Johnson, 147 A.D.2d 312, 317 [2d Dept 1989] ). “Moreover, 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” ( id.). “It is the existence of an issue, not its relative strength that is the critical and controlling consideration” (Liang v. Vanegas, 2011 WL 6131093, 2011 Slip Op 33127[U] [Sup Ct N.Y. Co, 2011], citing Barrett v. Jacobs, 255 N.Y. 520 [1931]; Cross v. Cross, 112 A.D.2d 62, 64 [1st Dept 1985).
Punitive Damages Claim
“Punitive damages are available to vindicate a public right only where the actions of the alleged tortfeasor constitute either gross recklessness or intentional, wanton or malicious conduct aimed at the public generally, or were activated by evil or reprehensible motives” (Rodgers v. Duffy, 95 AD3d 864, 866 [2d Dept 2012] ). “Punitive damages may be awarded when the defendant's conduct has a high degree of moral culpability.... The conduct need not be intentional and it is sufficient if it is so reckless or wantonly negligent as to be the equivalent of a conscious disregard of the rights of others” (Rinaldo v. Mashayekhi, 185 A.D.2d 435, 436 [3d Dept1992]; Home Ins. Co. v. American Home Products Corp., 75 N.Y.2d 196, 203 [1990] ). “Such wantonly negligent or reckless conduct must be sufficiently blameworthy,' and the award of punitive damages must advance a strong public policy of the State by deterring its future violation” (Randi A.J. v. Long Island Surgi–Center, 46 AD3d 74, 81 [2d Dept 2007] ).
“Evidence that a defendant was driving while intoxicated at the time of a motor vehicle accident standing alone is insufficient to support an award of punitive damages, absent evidence of willful or wanton reckless conduct” (Taylor v. Dyer, 190 A.D.2d 902, 903 [3d Dept 1993]; see also Boykin v. Mora, 274 A.D.2d 441 [2d Dept 2000] ). Each case must be considered on its own merits “taking into account the nature of the actor's conduct and the level of intoxication” (Sweeney v. McCormick, 159 A.D.2d 832, 834 [3d Dept 1990] ). “Whether the injury-producing conduct was an isolated event or only the latest incident in a continuing pattern of similarly reckless behavior [is] an important factor to be weighed by the trier of fact in determining whether an award of punitive damages [is] warranted” (Randi A.J. v. Long Island Surgi–Center, 46 AD3d at 85–86).
In opposition to the motion, to establish his claim for punitive damages, plaintiff submits copies of the police report and supporting deposition, the felony complaint, the record from Westchester County Court establishing Berry's convictions for driving while intoxicated arising from this accident and aggravated unlicensed operation of a motor vehicle, a report of Berry's refusal to submit to a chemical test dated March 13, 2007, and medical records. Other than the record of the convictions and Berry's statements to the police officer contained in the supporting deposition, where Berry admitted to drinking rum at a friend's house for seven hours before the accident happened, none of the documents submitted by plaintiff are in admissible form for various reasons—the documents are not properly certified pursuant to CPLR § 4518, the officer who prepared the police report was not an eyewitness to the accident and the statements by the parties contained therein do not fall into any hearsay exception ( see Westchester Medical Center v. State Farm Mut. Auto. Ins. Co., 44 AD3d 750, 753 [2d Dept 2007]; Boyce v. Rutledge, 21 Misc.3d 1117[A]*4 [Sup Ct New York Co 2008] ). Also, the medical reports of Dr. John M. Olsewski, which the plaintiff submits to establish his injuries, are not affirmed to be true under the penalties of perjury as required by CPLR § 2106 ( see also Grasso v. Angerami, 79 N.Y.2d 813, 814 [1991] ).
Although the report of Berry's refusal to submit to a chemical test dated March 13, 2007, the supporting deposition, and the felony complaint are uncertified, this Court could properly consider these documents since there is other evidence, namely Berry's deposition testimony, that suggests “a palpable likelihood of establishing plaintiff's prima facie case” ( see generally Phillips v. Joseph Kantor & Co., 31 N.Y.2d at 310;Westchester Medical Center v. Progressive Casualty Insurance Co., 51 AD3d 1014, 1017–1018 [2d Dept 2008] ). Nevertheless, the Court need not consider these records since Berry's deposition testimony alone raises a triable issue of fact whether his conduct was wantonly negligent or reckless warranting the imposition of punitive damages.
By Berry's own admission, he consumed at least four drinks during the evening prior to the accident. Although his blood alcohol level is unknown since he refused to take a blood test, he pled guilty to driving while intoxicated and aggravated unlicensed operation of a motor vehicle following this accident. Berry has no recollection of the accident or any of the events leading up to it. And he submits no mitigating circumstances to the Court to explain his conduct in causing the accident. The force of the impact caused plaintiff's seat support struts to snap and his vehicle to be pushed approximately 100 feet. There is no evidence to suggest that Berry did anything other than drive directly into the plaintiff's vehicle without braking or utilizing any other evasive action to avoid the collision. A jury may infer from all of these facts that Berry was highly intoxicated at the time of the accident and that his conduct was reckless and wantonly negligent.
Berry also admitted in his deposition that he refused to take a chemical test on a prior occasion. While he denies it was alcohol related, he fails to come forward with any credible explanation of the circumstances surrounding this refusal. Moreover, Berry's conviction of aggravated unlicensed operation of a motor vehicle resulted from his failure to comply with numerous court orders relating to payment of fines and penalties assessed against him for motor vehicle violations including his prior refusal to take a chemical test. Considering the totality of the circumstances presented here, a jury should consider “[w]hether the injury-producing conduct was an isolated event or only the latest incident in a continuing pattern of similarly reckless behavior,” sufficient to warrant an award of punitive damages ( see generally Randi A.J. v. Long Island Surgi–Center, 46 AD3d at 85–86).
The plaintiff is entitled to every favorable inference that can be drawn from the evidence. Based upon Berry's testimony alone, a triable issue of fact exists whether Berry's conduct was wantonly negligent or reckless as to be the equivalent of a conscious disregard for the rights of others, warranting the imposition of punitive damages ( see Sweeney v. McCormick, 159 A.D.2d at 834;Schragel v. Juszczyk, 43 AD3d 1375 [4th Dept 2007] ). As such, defendants' motion for summary judgment seeking a dismissal of the punitive damages claim against Berry is denied.
Negligent Entrustment
Loving Care argues that the complaint against it sounds in negligent entrustment alone. It argues that since Loving Care determined Berry was a licensed driver prior to providing him with the vehicle, and because it did not have any specific knowledge that Berry's use of the vehicle would constitute an unreasonable danger, it is entitled to summary judgment.
Although the complaint alleges a cause of action for negligent entrustment, it also alleges Loving Care was negligent in the ownership of the vehicle. The parties ignore New York Vehicle and Traffic Law § 388, which imposes vicariously liability on the owner of a vehicle for the negligence of its operator who is using the vehicle with permission. Pursuant to Vehicle and Traffic Law § 128, the applicable definition of “owner” 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” ( see also Hassan v. Montuori, 99 N.Y.2d 348 [2003] ). Since Loving Care leased the vehicle from Chrysler for a period in excess of thirty days, it is an “owner” under Vehicle and Traffic Law § 388. Accordingly, based upon Loving Care's status as an owner, its motion for summary judgement dismissing the complaint against it is denied.
To state a cause of action for negligent entrustment, plaintiff must establish that the defendant had control over the vehicle and was negligent in entrusting it to a third party when the defendant knew, or in the exercise of ordinary care should have known, the third party was incompetent to operate it (Bennett v. Geblein, 71 A.D.2d 96, 99 [4th Dept 1979] ). “To establish a cause of action under a theory of negligent entrustment, the defendant must either have some special knowledge concerning a characteristic or condition peculiar to the [person to whom a particular chattel is given] which renders [that person's] use of the chattel unreasonably dangerous ... or some special knowledge as to a characteristic or defect peculiar to the chattel which renders it unreasonably dangerous' “ (Byrne v. Collins, 77 AD3d 782, 784 [2d Dept 2010], quoting Cook v. Schapiro, 58 AD3d 664, 666 [2d Dept 2009] ).
“[O]n the issue of negligent entrustment, New York courts have consistently considered the operator's possession vel non of a legally valid New York State driver's license to be relevant to the material issue whether he was competent to be entrusted with an automobile by the owner” (Calhoun v. Allen, 38 Misc.3d 171, 179 [Sup Ct, New York Co 2011]; see also Weinstein v. Cohen, 179 A.D.2d 806 [2d Dept 2011] ). And in deciding such competency, “courts have distinguished between the relevance of license revocations or restrictions for reasons pertaining to the safe operation of vehicles ... and those unrelated to that objective” (Calhoun v. Allen, 38 Misc.3d at 180).
Here, Loving Care relies upon the affidavit of Berry, who states in a vague and conclusory fashion that Loving Care determined that Berry was a licensed driver before releasing the vehicle to him. Conspicuously absent is any proof from Loving Care to establish what it knew, or in the exercise of ordinary care should have known, about Berry's competency to operate a vehicle over which Loving Care had control. Berry had only been employed by Loving Care for seven months when the accident occurred. Based upon Berry's own admissions that his license had been suspended prior to the accident, and his insufficient explanations regarding the circumstances surrounding his prior refusal to take a chemical test and the reasons for his license suspensions, Loving Care has failed to establish that it had no knowledge of any special circumstances that would render Berry's use of the vehicle unreasonably dangerous. As such, its motion for summary judgment is denied.
Based upon the foregoing, it is hereby
ORDERED, that defendants' motion pursuant to CPLR § 3212 granting Berry summary judgment dismissing plaintiff's the punitive damages claim against him is denied; and it is further
ORDERED, that defendants' motion pursuant to CPLR § 3212 granting Loving Care summary judgment dismissing plaintiff's complaint against it is denied; and it is further
ORDERED, that defendants' motion pursuant to CPLR § 3212 granting Chrysler summary judgment dismissing plaintiff's complaint against it is denied as moot; and it is further
ORDERED, that the parties shall appear in the Settlement Conference Part on April 23, 2013 at 9:30 A.M. in Courtroom 1600 of the Westchester County Supreme Court, 111 Dr. Martin Luther King, Jr ., Boulevard, White Plains, New York.
All other relief requested and not decided herein is denied.
This constitutes the decision and order of the Court.
+--------------------------------------------------------------------+ ¦Defendants' Notice of Motion, Affirmation, Affidavit, Exhibits¦1–11 ¦ +--------------------------------------------------------------+-----¦ ¦Plaintiff's Affirmation in Opposition, Exhibits ¦12–17¦ +--------------------------------------------------------------+-----¦ ¦Plaintiff's Memorandum of Law ¦18 ¦ +--------------------------------------------------------------+-----¦ ¦Defendants' Reply Affirmation ¦19 ¦ +--------------------------------------------------------------------+