Vitiello v. Mayrich Construction Corp. ( 1998 )

—Judgment, Supreme Court, Bronx County (George Friedman, J.), entered June 16, 1997, awarding plaintiff damages in the principal amounts of $978,412 for past pain and suffering and $1,050,000 for future pain and suffering, and bringing up for review prior orders of the same court (Luis Gonzalez, J.), entered on or about June 19, 1996 and July 10, 1996, and (Howard Silver, J.), entered September 26, 1996, which respectively granted on default plaintiffs motion for summary judgment on the issue of liability, denied defendant’s motion to vacate that default, and severed defendant’s third-party action, reversed, on the law, without costs, plaintiffs motion for summary judgment denied, the default judgment vacated, and the directive of severance deleted, and the matter remanded for further proceedings.

Plaintiff commenced this action to recover for severe injuries to her left arm and hand, sustained when she was run over by a truck owned by defendant and operated by defendant’s employee, who was also plaintiffs husband. The action is premised solely on plaintiffs husband’s alleged negligence and defendant’s liability for it under Vehicle and Traffic Law § 388; neither party has suggested that the truck was defective or negligently maintained.

Plaintiff alleged that at about 6:00 a.m. on January 20, 1993, while carrying garbage cans out to the street, she tripped and fell over a protruding gas cap located at the base of the driveway to her home. Meanwhile, her husband was seated behind the wheel of the truck with the engine running. Plaintiff called out to him for help because she was unable to rise. (It was later determined that she had fractured her hip when she fell,) He ran to help her and then ran into the house to call for medical assistance. Plaintiff was still lying in the driveway behind the unattended truck. While her husband was in the house, the truck rolled backwards down the incline of the driveway and ran over plaintiff, crushing and permanently disfiguring her left arm and hand, as well as inflicting other serious injuries.

Plaintiffs submissions on liability contained conflicting accounts of how the accident occurred. In her complaint, she simply alleged negligent operation of the vehicle without specifying any negligent acts. Her bill of particulars first stated that “the incident complained of occurred * * * when defendant’s vehicle, which was off and in the park position, rolled backwards striking plaintiff” (emphasis added), but the very next sentence claimed that the operator of the truck “was negligent * * * in leaving the vehicle unattended while it was running and out of the park position” (emphasis added).

Furthermore, at her deposition, plaintiff said that she could not be sure whether her husband left the vehicle running when he went inside, nor did she have any way of knowing what gear it was in or whether the parking brake was on. She also said at one point that her husband told her he had turned the engine off before going into the house, so that the fumes would not bother her as she lay on the ground behind the truck. As plaintiff waived the right to depose defendant, no deposition was taken of the only other person with knowledge of the facts, namely plaintiffs husband.

Plaintiff moved for partial summary judgment on liability, which was granted “on default,” even though defendant actually appeared and served opposition papers. While maintaining that it had never been in default, defendant moved to vacate the default judgment, since this was the only procedure it could use to challenge the court’s ruling (CPLR 5015). The motion court refused to vacate the default because defendant had failed to support its motion with an affidavit by someone with personal knowledge of the facts surrounding the accident. (Significantly, the only person with such knowledge was plaintiffs husband.) Defendant’s third-party action against plaintiffs husband for contribution was severed, and plaintiffs claim for damages went to a jury, which awarded her the sums stated above. At the inquest, defendant was precluded from indicating that the driver of the vehicle in question was plaintiffs husband.

The motion court erred in granting partial summary judgment to plaintiff. To begin with, defendant could not have been in default because it appeared in opposition to plaintiffs motion (CPLR 3215 [a]). On the motion to vacate the so-called default, the court erroneously held defendant to a higher burden than it had faced on the original summary judgment motion: defendant now had to show not just a triable issue of fact, but a meritorious defense (Sachellaridou v Tap Elec., 188 AD2d 427), through the testimony or affidavit of plaintiffs husband.

Moreover, even under the proper standard, summary judgment should have been denied because plaintiff did not present a prima facie case of entitlement to judgment as a matter of law. The motion must be denied if the moving party fails to make such a showing, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). As indicated above, plaintiffs descriptions of how the accident occurred contradicted each other in essential particulars. It is also curious that if the truck rolled down the hill because the parking brake was not set, it did not roll down right away, but rather remained motionless during the time it took plaintiffs husband to run to her side and then return to the house. In short, issues of fact and credibility were raised by plaintiffs own submissions, precluding a grant of summary judgment (Aetna Cas. & Sur. Co. v Island Transp. Corp., 233 AD2d 157, 158).

Summary judgment should not be granted when the facts on which the motion is predicated are exclusively within the moving party’s knowledge (Antunes v 950 Park Ave. Corp., 149 AD2d 332, 333). This rule is especially appropriate here because the person on whose acts the defendant’s liability is based has a close personal and financial relationship with the plaintiff. Since the plaintiff and the defendant’s employee are united in interest by virtue of their marital relationship, the court should not presume that the facts as described in her affidavit are true (Krupp v Aetna Life & Cas. Co., 103 AD2d 252, 262). Particularly in light of this danger of collusion, defendant is entitled to have a jury hear its challenges to the credibility of the persons with exclusive knowledge of the circumstances of the accident (supra, at 263).

The dissent would have granted summary judgment under a res ipsa loquitur theory because there is supposedly no explanation for the accident other than the driver’s negligence (Dermatossian v New York City Tr. Auth., 67 NY2d 219). This argument would be more convincing if the driver of the truck were an ordinary employee with no motive to collude in plaintiffs story of how the accident occurred. Here, moreover, plaintiffs story is “uncontroverted” (as the dissent puts it) only because she chose not to depose the only other person with knowledge of the facts and thereafter moved for summary judgment, thus halting the discovery process before defendant could depose plaintiffs husband.

Since we conclude that triable issues exist as to how the accident took place and whether the persons involved acted reasonably (Rennie v Barbarosa Transp., 151 AD2d 379), the severance of the third-party action should also be vacated, because the determination of liability in both actions depends on clarification of the same facts surrounding the accident (Dolce v Jones, 145 AD2d 594), specifically the condition in which plaintiffs husband left the truck and whether he acted reasonably. Concur — Sullivan, J. P., Rosenberger and Williams, JJ.