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.
.•.... - ......
.- )'
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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
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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.
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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
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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
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