Decided February 3, 2006.
Defendant on the counter-claim E.R. moves seeking summary judgment on the counter claim asserted by defendants. E.R. contends that she bears no liability for the happening of this accident. Defendants oppose the instant motion asserting that questions of fact preclude summary judgment. Plaintiff's cross-move seeking summary judgment over defendants by adopting the arguments may by E. R. Defendants oppose the cross-motion asserting that issues of fact preclude summary judgment.
The instant action is one for personal injuries stemming from a motor vehicle accident. It is alleged that on September 26, 2002, plaintiff's were involved in an accident involving a vehicle owned and operated by E.R. and occupied as a passenger by E.G. and another vehicle owned and operated by defendants. Defendants have interposed a counterclaim against E.R., alleging that E.R. is completely responsible for the instant accident.
E.R. was deposed and testified, in pertinent part, as follows. On September 26, 202, she was involved in an accident while in her parked car with her daughter E. G. At the time of the accident, the car was off and parked and had been in that state for fifteen minutes. The car was parked on Longfellow, which at some point became 167th Street. As she was parked, she was hit by another vehicle she had not seen prior to the accident. There were cars in front and opposite her vehicle.
E.G. was deposed and testified, in pertinent part, as follows. On September 26, 2002, she was involved in an accident while seated by herself in the rear of her mother's car. The car she was occupying was parked. She did not see the other vehicle prior to the accident.
BILLY A. SANCHEZ (Sanchez) was deposed and testified, in pertinent part, as follows. On September 26, 2002, he was operating his work van en route to park the same. He was alone in the van and traveling on Westchester Avenue. When he approached Longfellow Avenue, he attempted to make a left turn on to the same. As he was turning, a car was approaching in the other direction, he swerved to avoid the same and collided with a vehicle parked on the corner of Longfellow Avenue. The vehicle he collided with was parked on the crosswalk.
The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law. Alvarez v. Prospect Hospital, 68 NY2d 320 (1986); Zuckerman v. City of New York, 49 NY2d 557 (1980). There is no requirement that the proof for said motion be submitted in affidavit form, rather, the requirement is that the evidence proffered be in admissible form. Muniz v. Bacchus, 282 AD2d 387 (1st Dept. 2001). Once movant meets his initial burden, the burden shifts to the opponent, who must then produce sufficient evidence, also in admissible form, to establish the existence of a triable issue of fact. Zuckerman v. City of New York, 49 NY2d 557 (1980). The burden, however, always remains where it began, with the movant on the issue. Hence, "if the evidence on the issue is evenly balanced, the party that bears the burden must lose." Director Office of Workers Compensation Programs v. Greenwich Collieris, 512 U.S. 267 (1994); 300 East 34th Street Co. V. Habeeb, 248 AD2d 50 (1st Dept. 1997).
When deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility. As the Court stated in Knepka v. Talman, 278 AD2d 811 (4th Dept. 2000):
Supreme Court erred in resolving issues of credibility in granting defendants' motion for summary judgment dismissing the complaint (see, Mickelson v. Babcok, 190 AD2d 1037, 593 NYS2d 657; see generally, Black v. Chittenden, 69 NY2d 665, 511 NYS2d 833, 503 NE2d 1370; Capelin Assocs. v. Globe Mfg. Corp., 34 NY2d 338, 341, 357 NYS2d 478, 313 NE2d 776). Any inconsistencies between the deposition testimony of plaintiffs and their affidavits submitted in opposition to the motion present issues for trial(see, Schoen v. Rochester Gas Elec., 242 AD2d 928, 665 NYS2d 372; Mickelson v. Babcock, supra). See also, Yaziciyan v. Blancato, 267 AD2d 152 (1st Dept. 1999); Perez v. Bronx Park Associates, 285 AD2d 402 (1st Dept. 2001); Glick Dullock v. Tri-Pac Export Corp., 22 NY2d 439 (1968); Singh v. Kolcaj Realty Corp., 283 AD2d 350 (1st Dept. 2001).
Accordingly, the Court's function when determining a motion for summary judgment is issue finding and not issue determination. Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395 (1957). Lastly, because summary judgment is such a drastic remedy, it should never be granted when there is any doubt as to the existence of a triable issue of fact. Rotuba Extruders v. Ceppos, 46 NY2d 223 (1978). When the existence of an issue of fact is even debatable, summary judgment should be denied. Stone v. Goodson, 8 NY2d 167 (1960).
Self serving affidavits, meaning those which contradict previous deposition testimony, will not be considered by the Court in deciding summary judgment and cannot raise a triable issue of fact sufficient to defeat summary judgment. Lupinsky v. Windham Construction Corp., 293 AD2d 317 (1st dept 2002); Joe v. Orbit Industries, Ltd., 269 AD2d 121 (1st Dept. 2000); Kistoo v. City of New York, 195 AD2d 403 (1st Dept. 1993).
Where the facts proven show that there are several possible causes of an injury, for one or more of which the defendant was not responsible, and it is just as reasonable and probable that the injury was the result of one cause as the other, plaintiff cannot have a recovery, since he has failed to prove that the negligence of the defendant caused the injury.
Ingersoll v. Liberty Bank of Buffalo, 278 NY 1, 7 (1938). Put another way, a plaintiff is required to demonstrate that the defendant's negligence was the proximate cause of the accident and injuries claimed. At the very least, a plaintiff is required to establish facts and conditions from which defendant's negligence and an accident's causation may be reasonably inferred. Id. The proximate cause of an injury producing event means the substantial cause of the event. Lynn v. Lynn, 216 AD2d 194 (1st Dept. 1995). When a plaintiff fails to establish the cause of an accident and multiple causes can be attributed to the accident claimed, any determination as to said accidents cause would be nothing less than speculation. Teplitskaya v. 3096 Owners Corp., 289 AD2d 477 (2nd Dept. 2001). In Teplitskaya, the court granted summary judgment in defendant's favor when the evidence as to what caused plaintiff's fall was nothing short of speculation. Id. In that case, plaintiff died and could not state what caused his fall. Id. The only evidence as to causation came from another person who found plaintiff surrounded by paint chips after his fall. Id. the Court ruled that any attempt to attribute the fall to the paint chips was speculative since it was just as likely that plaintiff could have fallen for a host of other reasons totally unrelated to the paint chips. Id.
When the evidence as to an accident's causation is undisputed, the question of whether a defendant proximately caused an injury or event is for the court rather than the jury. Lee v. New York City Housing Authority, 25 AD3d 214 (1st Dept. 2005). To that end, while negligence and proximate causation, frequently overlap, there is a discernable between the two concepts; liability only attaching when there is evidence of both. Id. Evidence of negligence by itself is insufficient to impute liability. Id. it must also be demonstrated that the negligence proximately caused the harm alleged. Id. Hence, there is a distinction between a condition which, while evidence of negligence, merely sets the occasion for or facilities an injury and an act which proximately causes an accident. Id. The former not constituting liability, the latter, constituting liability, and when clear cut, for the court to decide. In Lee, the court held that while defendant was negligent, the negligence was not the proximate cause of the accident therein. Id. in that case, plaintiff was injured when, while playing ball, the ball went through a hole in a negligently maintained fence. Id. Plaintiff went to fetch the ball, not through the hole but after walking around the fence. Id. As he retrieved the ball, plaintiff was hit by a car. Id. In that case, the court concluded that even though defendant was negligent in maintaining the fence herein, said negligence was not the proximate cause of the accident. Id. The court found that the proximate cause was the intervening acts of the driver of the vehicle which struck plaintiff. Id. Since independent intervening acts break the causal connection between a defendant's negligence and an accident, the court found that defendant had not caused the accident. Id. The court, in Sheehan v. City of New York, 40 NY2d 496 (1976), came to a similar conclusion. In that case, plaintiff's sued after being injured while on defendant's bus. Id. The bus was parked and impacted in the rear by another vehicle. The court concluded that the bus' location, even though not at a bus stop, was not the proximate cause of the accident. Id. Instead, the court concluded that it was the negligence of the other vehicle which caused the accident. Id. Motor Vehicle Accidents
In the absence of evidence to the contrary, a defendant who establishes that he was not negligent in the operation of his vehicle is entitled to summary judgment. Cerda v. Parsley, 273 AD2d 339 (2nd Dept. 2000). In Cerda, the court, in discussing a rear end collision, found that the defendant established that she had not acted negligently with respect to operation of her vehicle. Id. Defendant proffered evidence that she had safely brought her vehicle to a complete stop prior to collision and that she had been propelled into the rear of another vehicle after a stop and after being hit in the rear by another vehicle. Id. The Court, after having no evidence that the defendant acted negligently or otherwise contributed to the accident, granted summary judgment in her favor. Id. Parked Vehicles
It is well settled that owners of improperly parked vehicles may be held liable to plaintiffs injured by negligent drivers of other vehicles. Sieredzinski v. McElroy, 303 AD2d 575 (2nd Dept. 2003); Reuter v. Rodgers, 232 AD2d 619 (2nd Dept. 1996); Boehm v. Telfer, 250 AD2d 975 (3rd Dept. 1998). Liability depends on the resolution of factual issues concerning foreseeability and proximate cause; issues resolved by the trier of fact. Id. Liability for improperly parked vehicles is not confined to statutory violations but equally applies to circumstances evidencing ordinary negligence. Falker Ostrander, 272 AD2d 988 (4th Dept. 2000); Perry v. Pelersi, 261 AD2d 780 (3rd Dept. 1999); Boehm v. Telfer, 250 AD2d 975 (3rd Dept. 1998).
E.R.'s motion and plaintiffs' cross-motion are hereby granted. E.R.'s testimony demonstrates that E.R.'s vehicle was parked when the accident herein occurred. She also testified that she had been parked for fifteen minutes prior to the accident. E.R. also testified that she was legally parked and that the accident happened when defendants' vehicle collide with her vehicle. For this reason, E.R. has established that she was in no way negligent or responsible for this accident and has thus demonstrated prima facie entitlement to summary judgment on defendants' counterclaim. For the very same reason, plaintiffs have demonstrated prima facie entitlement to partial summary judgment on the issue of liability.
While Sanchez' testimony controverts where E.R.'s vehicle was parked at the time of the accident, thus raising an issue of fact, such issue is not sufficient to preclude summary judgment. Sanchez' submits that E.R.'s vehicle was parked in the crosswalk, which is a violation of New York City Traffic Rule 4-08 (e)(5). While this is evidence of some negligence on behalf of E.R., it is clear to this Court, that irrespective of where E.R. was parked, her alleged negligence if any, was not the proximate cause of the instant accident. By Sanchez' own testimony this accident occurred when he swerved to avoid hitting another vehicle. Thus, Sanchez' intervening act broke the causal connection between E.R.'s alleged negligence and the accident herein. Crediting Sanchez' testimony, the circumstances are similar to the facts In Lee, where the defendant's negligence was clearly not the proximate cause of the accident. Lee v. New York City Housing Authority, 25 AD3d 214 (1st Dept. 2005). This case is also not much different than Sheehan, which stands for the very same proposition discussed in Lee, and not for the propositions submitted by the parties. Sheehan, does not stand for the proposition that parked vehicles bear no liability for motor vehicle accidents, the point advanced by E. R. Nor does the holding in Sheehan, hinge on the fact that defendant bus was legally parked, the point advanced by defendants. Instead, the holding in Sheehan, is that the bus' position was not the proximate cause of that accident, thereby warranting summary judgment in favor of defendant bus. Sheehan v. City of New York, 40 NY2d 496 (1976). Since it is clear that the proximate cause of the accident herein was Sanchez' operation of his vehicle. E.R.'s motion is granted and plaintiffs' cross-motion is also granted. It is hereby
ORDERED that the cross-claim against E.R. be hereby dismissed with prejudice. It is further
ORDERED that plaintiffs are hereby granted partial summary judgment on the issue of liability only, still requiring the same to prove the existence of a serious injury as defined by the Insurance Law. It is further
ORDERED that E.R. serve a copy of this Order with Notice of Entry upon all parties within thirty (30) days hereof.
This constitutes this Court's decision and Order.