Herskovits v. Weinberger

2024 NY Slip Op 32844(U)

• Court: New York Supreme Court, Kings County
• Decided: August 12, 2024
• Docket: Index No. 531070/2021
• Status: Unpublished

Opinion

Herskovits v Weinberger 2024 NY Slip Op 32844(U) August 12, 2024 Supreme Court, Kings County Docket Number: Index No. 531070/2021 Judge: Ingrid Joseph Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: KINGS COUNTY CLERK 08/13/2024 03:52 PM INDEX NO. 531070/2021 NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 08/13/2024

At an lAS At IAS Term, Part Part 83 ofof the Supre Supreme me Court of Court of the State of New State of New York, held and held in and for the Coun ty of for the County of Kings Kings,, at the Courthouse, Courthouse, at r 360 Adams Adams Street Brooklyn, Nfw E

th~ (If..- day of the fR-d ay of -fii4 Street,, Brooklyn, ~, Nfw York, on ftz4tvt, 2024. 2024. on

pPRERESSEN ENTT:: HON.HON. INGRINGRID ID JOSEPH, JOSEPH, J.S.C. J.S.C. SUPR SUPREME EME COUR COURTT OF THE THE STATSTATE E OF NEWNEW YORK YORK COUN COUNTY TY OF KING KINGSS ------- ----------------------------------------------- ----------------X -------------------------------------------~---------------------------)( MORDECHAI HERSKOVITS, MORDECHAI HERSKOVITS,

Plaintiff, Plaintiff, -again st- -against- Index No.: Index 531070/2021 No.: 531070/2021

DECI SION AND ORD DECISION ORDER ER MOR DECAI WEIN MORDECAI BERGER and WEINBERGER and HERS HERSHBER HBER WEIN BERGER, WEINBERGER,

Defendants. Defendants. ------- ·---------------------------------------------------------------X -----------------------------------------------------------------------)(

The follow ing e-filed following e-filed paper paperss read herein:: read herein NYSCEF Doc. NYSCEF Doc. Nos.: Nos.:

ff Motio Motionn Seq. No.3 No. 3 Notic Noticee of of Motio n/Affirmation in Suppo Motion/Affirmation rt/Exhibits .............................. .. Support/EXhibits . . 57-6 2 57 - 62 Affirm ation in Oppo Affirmation Opposition ;..: ···········································;··········. sition... ,.. ·;··:···· 63 Reply Affirmation ................................................................................... . Reply Affirmation . 66

This This action action arises arises out out ofof an accide accidentnt which which occur occurred on January red on_ 10, 2019. January 10, Plaintiff 2019. Plaint iff Mord echai Hersk ovits ("Plai ntiff" Mordechai Herskovits ("Plaintiff") was a· ) was passenger in a car a passenger driven by car driven by Mordecai Weinberger Mordecai Weinb erger ("Def endan t Drive r") and ("Defendant Driver") and owned owne d by Hersh ber Weinb Hershber erger. Plaintiff Weinberger. movess for summary Plaintiff move for summ ary judgment, judgment, pursu ant to CPLR 3212, on the issue ofliab pursuant to CPLR 3212, on the issue ofliability. ility. Defendants Defendants oppose oppose the motion, claiming motion, claim ing that that there there are material issues are material issues of of fact prese presentnt warra warranting nting denial of the motion. denial of the motio . - . ,4 n.

.•.... - ...... .- )'

1 of 5 [* 1] FILED: KINGS COUNTY CLERK 08/13/2024 03:52 PM INDEX NO. 531070/2021 NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 08/13/2024

In his motion, motion, Plaintiff Plaintiff alleges was a passenger that he was alleges that vehicle driven the vehicle passenger in the the driven by the Defendant Defendant Driver, that the Driver, that Driver lost Defendant Driver the Defendant control of lost control of the vehicle;1 and the vehicle, that Plaintiff and that not was not Plaintiff was comparatively comparatively negligent negligent in causing accident. In support the accident. causing the support of his motion, of his cites to Plaintiff cites motion, Plaintiff Defendant Defendant Driver's Driver's deposition deposition testimony the police and the testimony2 2 and report of police report the incident of the that the establish that incident to establish defendant lost defendant lost control control of ofthe the vehicle. Plaintiff contends vehicle.33 Plaintiff that he has met contends that prim a facie his prima met his burden and facie burden and that that the burden burden now shifts to Defendants now shifts Defendants to prove there is a non-negligent that there prove that the explanation for the non-negligent explanation accident. accident. In opposition, Defendants contend opposition, Defendants material issue that a material contend that issue of fact remains of fact the whether the remains as to whether accident accident was was unavoidable unavoidable and and thus, whether the thus, whether doctrine applies. emergency doctrine the emergency Driver Defendant Driver applies. Defendant testified testified in his deposition deposition that accident may the accident that the have been may have caused by black been caused ice on black ice roadway. 4 the roadway.4 on the Defendant argues Defendant argues that ifblack that if black ice was cause of found to be the cause was found of the accident non-negligent there is a non-negligent accident there explanation explanation for the the accident. Since summary accident 55 Since summary judgment appropriate where not appropriate judgment is not genuine there are genuine where there issues issues of of fact, Defendant Defendant contends contends that the possibility that the that black possibility that caused the black ice caused makes accident makes the accident summary judgment inappropriate. summary judgment inappropriate. In his reply, reply, Plaintiff Plaintiff maintains maintains that there is no evidence that there that qualifies evidence that non-negligent qualifies as a non-negligent explanation. explanation. Plaintiff Plaintiff cites the police cites to the report, which police report, shows that which shows the Defendant that the was.issued Driver was Defendant Driver issued a ticket ticket for "driving speed greater "driving at a speed greater than reasonable and than is reasonable prudent under and prudent conditions,"66 the conditions," under the pursuant pursuant to section section 1180A lI80A of Vehicle and the Vehicle of the and Traffic Law ("VTL"). Traffic Law Plaintiff argues ("VTL"). Plaintiff because that because argues that DefendantDriver's Defendant Driver's testimony merely states testimony merely that he "believed" states that "believed"?7 that black ice that black was the ice was of the cause of the cause accident and does accident does not provide any definitive not provide actual cause, evidence as to the actual statements or evidence definitive statements cause, that the that the Defendant Defendant fails to provide provide evidence sufficient to plead evidence sufficient emergency doctrine. the emergency plead the Additionally, doctrine. Additionally, Plaintiff Plaintiff argues argues that that Defendant Defendant should not be allowed should not the emergency rely on the allowed to rely because doctrine because emergency doctrine Defendant failed Defendant failed to raise emergency doctrine the emergency raise the defense in their affirmative defense doctrine as an affirmative answer. 88 their answer. It is well established that well established proponent of the proponent that the of a summary motion must judgment motion summary judgment prima make a prima must make facie showing showing of of entitlement judgment as a matter entitlement to judgment tendering sufficient of law, tendering matter of evidence to sufficient evidence

11 In his his deposition deposition testimony testimony Defendant Defendant testified that he was testified that driving in the was driving of the middle of the middle road when the road the car when the made a car made V-tum, U-tum, backed backed down, and fell on its side down, and (Weinberger tr at 18-19, side (Weinberger 18-19, lines 25-30). lines 25-30). ·. supra. See nn 1, supra. 22 See

NYSCEF Doc. 33 NYSCEF Doc. NNo;:ss, 0;:58, Affirmation Support 1 Affirmation in Support ~ 11. NYSCEF Doc. 44 NYSCEF No. 61, Doc. No. ExhibitC at 20, 61, ExhibitC 20, lines 21-23. lines 21-23. 5 NYSCEF Doc. 5 NYSCEF No. 53, Doc. No. 53, Affirmation Opposition ,r Affirmation in Opposition ~ 13. 6 NYSCEF 6 NYSCEF Doc. Doc. No. Exhibit D at 1. No. 62, Exhibit I. 7 NYSCEF 7 NYSCEF Doc. 61, Exhibit No. 61, Doc. No. 20, lines C at 20, Exhibit Cat 21-23. lines 21-23. 8 NYSCEF 8 NYSCEF Doc. generally. No. 5, generally. Doc. No.5,

2 of 5 [* 2] FILED: KINGS COUNTY CLERK 08/13/2024 03:52 PM INDEX NO. 531070/2021 NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 08/13/2024

demonstrate demonstrate the absence of any material absence of material issues issues of of fact (Alvarez Prospect Hosp., (Alvarez v Prospect NY2d 320, Hosp., 68 NY2d 324 [1986]; [1986]; see also Manicone v City also Manicone of New City of AD3d 535, 537 [2010]). New York, 75 AD3d Failure to make [2010]). Failure make such such a showing showing requires requires the denial of the motion, denial of motion, regardless regardless of of the sufficiency sufficiency of of the papers papers in opposition Alvarez, 68 NY2d opposition (see Alvarez, NY2d at 324). Once Once a prima prima facie demonstration demonstration has been been made, made, the burden burden shifts the party shifts to the party opposing motion to produce opposing the motion produce evidentiary evidentiary proof, proof, in admissible admissible form, sufficient sufficient to establish establish the existence of material existence of material issues issues of of fact which which require require a trial trial of of the action action (Zuckerman (Zuckerman v.v. City City of New York, 49 NY2d of New NY2d 557 [1980]). When assessing [1980]). When assessing the evidence evidence brought brought forth by an opponent opponent to a motion motion for summary summary judgment, judgment, "mere conclusions, expressions "mere conclusions, expressions of of hope hope or unsubstantiated unsubstantiated allegations allegations or assertions assertions are insufficient" insufficient" (Id, also Alvarez (lei, see also Alvarez v Prospect Prospect Hosp., 68 NY2d NY2d 320,324 320,324 [1986]). [1986]). In an action injuries sustained action for injuries sustained as a result result of of a one-car one-car accident, accident, a plaintiff plaintiff passenger passenger establishes establishes his entitlement summary judgment entitlement to summary judgment by proving proving that that the defendant defendant driver driver lost lost control control of vehicle while of the vehicle while driving driving (Mughal Rajput, 106 AD3d (Mughal v Rajput, AD3d 886, 888 [2d Dept Dept 2013]; 2013]; Pane Pane v Cisilino, 144 AD3d Cisilino, AD3d 567 567 [1st Dept Dept 2016]). 2016]). Once Once the plaintiff plaintiff has established established their their prima prima facie case, the burden burden shifts shifts to the driver come forward driver to come forward with with an exculpatory exculpatory explanation explanation (Siegel (Siegel v Terrusa, 222 AD2d AD2d 428 [2d Dept Dept 1995]). 1995]). The Court Court will first address will first address the admissibility admissibility of of Plaintiff's Plaintiff's evidence. evidence. With With respect respect to police police reports, reports, courts will deem courts will deem them them admissible admissible as a business business record record if if the report report is made made upon upon the police police officer's officer's personal personal observations and while observations and while carrying carrying out police police duties (Memenza v Cole, 131 duties (Memenza AD3d 131 AD3d 1020, 1021 [2d Dept Dept 2015]; 2015]; see CPLR 4518 [a]). Accident CPLR 4518[a]). Accident reports reports which which contain contain "a police police officer's officer's conclusions conclusions as to the the cause of the accident cause of accident even even though though the officer officer was was not not an eyewitness eyewitness to the accident accident and his conclusions were not based conclusions were based upon upon a 'post 'post incident incident expert expert analysis of observable analysis of observable physical physical evidence"' inadmissible (Hatton evidence'" are inadmissible v. Gassler, (Hatton v. AD2d 697, GassIer, 219 AD2d 697, 697 [2nd Dept Dept 1995] quoting Donlan, 77 AD2d Murray v Donlan, quoting Murray Plaintiff cites AD2d 337, 347). Plaintiff cites to a violation, violation, present present in the the officer's officer's report, report, of of VTL VTL 1180A: driving driving "at speed greater "at a speed greater than than is reasonable reasonable and and prudent prudent under under the conditions." conditions." The police report The police report contains indication that contains no indication that the officer officer witnessed witnessed the accident accident or conducted conducted an expert post-incident report. expert post-incident report. Therefore, Therefore, the police police report report is considered considered hearsay hearsay and is not admissible admissible as evidence evidence by either Thus, this either party. Thus, this Court Court will only only consider consider the affidavits of the affidavits of parties and Defendant parties Defendant Driver's Driver's deposition testimony. deposition testimony.

3 of 5 [* 3] FILED: KINGS COUNTY CLERK 08/13/2024 03:52 PM INDEX NO. 531070/2021 NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 08/13/2024

The The Defendant Defendant Driver's Driver's own own testimony testimony establishes establishes that that he was was the the sole sole operator operator of of the vehicle, vehicle, and lost lost control control of of the the vehicle vehicle while while driving driving on Interstate Interstate 87. Thus, Thus, the the Court Court finds finds that that the Plaintiff Plaintiff has has established established his prima facie case. his prima case. In orq~r order _tq to rebut rebut the plaintiff's prima the plaintiff's prima facie case, case, the the defendant defendant seeks seeks to invoke invoke the the · emergency emergency doctrine doctrine by claiming claiming that that the the accident accident may may have been caused have been by black caused by black ice. Defendants Defendants did not plead the not plead the emergency emergency doctrine doctrine as an affirmative affirmative defense defense in their their answer answer but but raise raise it for the first time time in their their opposition opposition to Plaintiff's Plaintiff's motion motion for summary judgment.9 9 summary judgment. CPLR S 3018[b] CPLR § provides "a 3018[b] provides "a party party shall shall plead plead all matters matters which which if if not pleaded would not pleaded would be likely likely to take take the the adverse party by surprise" adverse party surprise" (CPLR S 3018[b]). (CPLR § 3018[b]). Failure Failure to plead plead the the emergency emergency doctrine doctrine bars bars the the defendant defendant from from claiming claiming the the emergency emergency doctrine doctrine as a defense defense in their their future future papers papers ''where "where the facts facts relating relating to the the existence existence of of an emergency emergency are presumptively presumptively known known only only to the party seeking the party seeking to invoke invoke the the doctrine" (Bello v Tr. doctrine" (Bello Auth., 12 AD3d Tr. Aufh., AD3d 58, 59 [2d Dept Dept 2004] 2004] Citing CPLR Citing CPLR 3018[b]). 3018[b]). However, However, a plaintiff's plaintiff's surprise surprise may may be avoided avoided if if the the defendant's defendant's deposition deposition testimony testimony contains contains a description description of of the emergency emergency doctrine doctrine claim. claim. (See Shin Shin v NY NY City City Tr. Auth., 210 Tr. Aufh., 210 AD3d AD3d 717, 717, 718 [2d Dept Dept 2022]; see also 2022]; see Edwards v.v. New also Edwards City Tr. New York City Auth., 37 Tr. Aufh., AD3d 158, 59 [ld AD3d [ld Dept Dept 2007]). 2007]). Additionally, Additionally, "whether "whether the emergency emergency doctrine doctrine must must be pleaded pleaded as an affirmative affirmative defense defense turns turns on on the particular circumstances the particular circumstances of of each each case case and and is a matter matter within within the sound sound discretion discretion of of the the motion motion court" (Edwards, 37 AD3d court" (Edwards, AD3d at 157; accord Bello, 12 AD3d accord Bello, AD3d at 61 ). Defendant 61). Defendant driver, driver, in his deposition, deposition, is unable unable to provide provide definitive definitive testimony testimony that that black black ice actually actually existed existed or specifically specifically caused accident.lo10 However, caused the accident. However, the the facts facts of of the the defendant's defendant's emergency emergency doctrine doctrine claim,_although claim,. although lacking lacking in specificity, specificity, are not not known known only only to the the defendants defendants in this case. The The accumulation accumulation of snowll11,, the of snow the manner manner in which which the the vehicle vehicle turned turned and and fell onto onto its sidel212, , and the defendant's defendant's belief belief that that the the cause cause of of the the accident accident was was black icel313 are all detailed black ice detailed in the defendant defendant driver's driver's testimony. testimony. Therefore, Therefore, defendants' defendants' claim claim that that black black ice created created an emergency emergency situation situation is not not likely likely to take take defendants defendants by surprise surprise and may may be raised raised as a rebuttal rebuttal to the plaintiff's plaintiff's prima prima facie case. case.

NYSCEF Doc. 9 NYSCEF 9 No. 63, Doc. No. 63, Affirmation Affirmation in Opposition Opposition ,i ~ 14. 10 NYSCEF 10 Doc. No. NYSCEF Doc. No. 61, Exhibit Exhibit Cat C at 20, 20, lines lines 19-23. 19-23. 11NYSCEF 11 Doc. No. NYSCEF Doc. Exhibit Cat No. 61, Exhibit C at 16, lines lines 4-6. 4-6. NYSCEF Doc. 12NYSCEF 12 No. 61, Doc. No. 61, Exhibit Exhibit Cat Cat 19, lines lines 2-3. 2-3. 13 NYSCEF 13 Doc. No. NYSCEF Doc. Exhibit C at 20, No. 61, Exhibit 20, line line 23

4 of 5 [* 4] FILED: KINGS COUNTY CLERK 08/13/2024 03:52 PM INDEX NO. 531070/2021 NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 08/13/2024

Although Although not not fatal to the defendant's ability the defendant's emergency doctrine claim the emergency ability to claim rebuttal, doctrine as a rebuttal, driver's unclear defendant driver's the defendant testimony and lack inconsistent testimony unclear and inconsistent additional evidence of additional lack of regarding evidence regarding the accident the raise a triable accident fail to raise of fact sufficient issue of triable issue the plaintiff's defeat the sufficient to defeat summary motion for summary plaintiff's motion judgment. Defendants judgment. rely on conclusory Defendants rely conclusory statements existence of possible existence regarding the possible statements regarding black ice of black rebut the roadway to rebut on the roadway the plaintiff's showing of prima facie showing plaintiff's prima of negligence. The defendant negligence. The driver defendant driver testifies that testifies what caused unsure what that he is unsure accident, and caused the accident, and that did not that he did black ice on the look for black not look following the accident. roadway following roadway accident. Although defendant driver Although the defendant testifies that driver testifies there was some that there some accumulation of snow accumulation of snow on the ground at the the ground time of the time accident, he is not of the accident, able to recall not able road the road recall the conditions any specificity: with any conditions with specificity: he does was snowing, whether it was remember whether does not remember whether the snowing, whether temperature temperature was freezing, or whether below freezing, was below had his windshield whether he had wipers on windshield wipers the time on at the of the time of Aside from accident. Aside accident. the defendant from the defendant driver's testimony, defendants EBT testimony, driver's EBT offer no other defendants offer admissible other admissible evidence evidence tending their allegation reinforce their tending to reinforce that the accident allegation that was caused accident was their black ice, and their caused by black "emergency doctrine" "emergency doctrine" rebuttal based entirely rebuttal is based driver's belief defendant driver's entirely on the defendant belief that black ice that black caused him to lose caused him of the control of lose control Defendant's conclusory vehicle. Defendant's the vehicle. lack specificity allegations lack conclusory allegations specificity and fail to substantiate substantiate their doctrine claim. emergency doctrine their emergency they have Therefore, they claim. Therefore, proffered a sufficient not proffered have not sufficient issue of issue necessitate a trial. of fact to necessitate trial. careful review, After careful After the Court review, the that Plaintiff Court finds that established their Plaintiff has established prima facie their prima entitlement to summary entitlement summary judgment that Defendants judgment and that proffer evidence failed to proffer have failed Defendants have that is evidence that sufficient to establish sufficient explanation for the accident. non-negligent explanation establish a non-negligent accident. hereby Accordingly, it is hereby Accordingly, ORDERED, that ORDERED, motion for summary Plaintiff's motion that Plaintiff's summary judgment (Mot. Seq. No.3) judgment (Mot. granted. No. 3) is granted. All other not addressed issues not other issues addressed herein without merit herein are without moot. merit or moot. This constitutes This the decision constitutes the decision and order of the Court. order of Court.

SEPH, J.S.C. SEPH, l.S.C.

Hon. Joseph Han. Ingrid Joseph Supreme Court Justice supreme Court Justice

5 of 5 [* 5]