2019 WL 1338267
Supreme Court, Appellate Division, First Department, New York.
Giovanni G. THOMPSON, Plaintiff–Appellant,
v.
COCA–COLA BOTTLING CO., et al., Defendants–Respondents.
8800
|
Index 26064/15E
|
ENTERED: MARCH 26, 2019
Synopsis
Background: Motorist, who was involved in auto accident, brought negligence action against tractor trailer driver. The Supreme Court, Bronx County, Fernando Tapia, J., denied motorist’s motion for partial summary judgment on issue of liability, and motorist appealed.

[Holding:] The Supreme Court, Appellate Division, First Department, held that motorist made a prima facie showing of negligence on the part of tractor trailer driver.

Reversed.

West Headnotes (3)

[1]
Automobiles

Motorist made a prima facie showing of negligence on the part of tractor trailer driver by submitting a police report of the incident containing driver’s statement that he backed into motorist’s vehicle, an admission against interest.
Cases that cite this headnote

[2]
Judgment

Tractor trailer driver’s summary judgment affidavit was insufficient to raise triable issue of fact so as to preclude grant of summary judgment to motorist on issue of liability in personal injury action, stemming from auto accident; driver’s affidavit contained version of the facts which seemed tailored to avoid consequences of his prior admission to police officer, that he backed into motorist’s vehicle, was premised on speculation, and was inconsistent with the photographs of the damage to motorist’s car.
Cases that cite this headnote

[3]
Judgment

Motorist was not required to demonstrate his own freedom from comparative negligence in order to be entitled to summary judgment, as to liability of tractor trailer driver, who backed into motorist’s car, for accident.
Cases that cite this headnote

Attorneys and Law Firms
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellant.
Goldberg Segalla, White Plains (Jill C. Owens of counsel), for respondents.
Manzanet–Daniels, J.P., Gische, Gesmer, Singh, Moulton, JJ.
Opinion

*1 Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered December 18, 2017, which denied plaintiff’s motion for partial summary judgment on the issue of liability, unanimously reversed, on the law, without costs, and the motion granted.

[1]Plaintiff made a prima facie showing of negligence on the part of defendants by submitting a police report of the incident containing defendant Adorno’s statement that he backed into plaintiff’s vehicle, an admission against interest (see Cruz v. Skeritt, 140 A.D.3d 554, 554, 32 N.Y.S.3d 504 [1st Dept. 2016] ). Plaintiff also submitted his own affidavit, which stated, consistent with the police report, that his vehicle was stopped, and that defendant backed his tractor trailer into the front passenger side of plaintiff’s vehicle as plaintiff continuously sounded his horn.

[2]Defendant’s submissions in opposition to the motion were insufficient to raise a triable issue of fact, because defendant Adorno’s affidavit contains a version of the facts which seems tailored to avoid the consequences of his prior admission to the police officer, is premised on speculation, and is inconsistent with the photographs of the damage to plaintiff’s car (Garzon–Victoria v. Okolo, 116 A.D.3d 558, 983 N.Y.S.2d 718 [1st Dept. 2014] ).

[3]We note that plaintiff was not required to demonstrate his own freedom from comparative negligence in order to be entitled to summary judgment as to defendants’ liability (Rodriguez v. City of New York, 31 N.Y.3d 312, 76 N.Y.S.3d 898, 101 N.E.3d 366 [2018] ).

We have considered defendants’ remaining contentions and find them unavailing.

All Citations
— N.Y.S.3d —-, 2019 WL 1338267, 2019 N.Y. Slip Op. 02285

2019 WL 1442097
Supreme Court, Appellate Division, First Department, New York.
Darnley CLARKE, Plaintiff–Appellant,
v.
AMERICAN TRUCK AND TRAILER, INC., et al., Defendants,
National Freight, Inc., Defendant–Respondent.
8625
|
Index 310675/11
|
ENTERED: APRIL 2, 2019
Synopsis
Background: Truck driver brought personal injury action against trucking company, alleging that company overloaded driver’s trailer causing the trailer to buckle and break apart, which resulted in truck crashing into a concrete divider. The Supreme Court, Bronx County, Julia I. Rodriguez, J., 2017 WL 4777608, granted company’s motion for summary judgment. Driver appealed.

Holdings: The Supreme Court, Appellate Division, held that:

[1] general counsel of nonparty had a lack of personal knowledge of trucking company’s activities, and thus counsel’s affidavit was insufficient to establish prima facie case entitling trucking company to summary judgment, and

[2] distribution services agreement between product owner and distribution company was not admissible.

Reversed and remanded.

West Headnotes (2)

[1]
Judgment

General counsel to nonparty company had a lack of personal knowledge of trucking company’s activities, and thus counsel’s affidavit was insufficient to establish prima facie case entitling trucking company to summary judgment, in personal injury action brought by truck driver against trucking company after company allegedly overloaded driver’s trailer, which caused accident, although counsel stated that he provided management and legal services to nonparty and trucking company; counsel did not work for trucking company, and counsel stated basis for his claimed knowledge of which entity was responsible for distribution services at time of accident was him having been advised by unnamed person or persons. N.Y. CPLR § 3212(b).
Cases that cite this headnote

[2]
Judgment

Distribution services agreement between product owner and distribution company was not admissible, in establishing prima facie case entitling trucking company to summary judgment in personal injury action brought by truck driver against trucking company after company allegedly overloaded driver’s trailer with product, which caused accident, although agreement was attached to affirmation of trucking company’s attorney, where distribution document was not authenticated. N.Y. CPLR § 4518(a).
Cases that cite this headnote

Attorneys and Law Firms
G. Wesley Simpson, P.C., Brooklyn (G. Wesley Simpson of counsel), for appellant.
Abrams, Gorelick, Friedman & Jacobson, LLP, New York (James E. Kimmel of counsel), for respondent.
Renwick, J.P., Manzanet–Daniels, Tom, Kahn, Gesmer, JJ.
Opinion

*1 Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered on or about September 21, 2017, which granted defendant National Freight, Inc.’s motion for summary judgment dismissing the complaint as against it, unanimously reversed, on the law, without costs, and the matter remanded for further proceedings, including determination of those issues not previously reached by the motion court.

This is an action for personal injuries arising from a motor vehicle accident. Plaintiff, a truck driver, alleges that employees of defendant National Freight, Inc. negligently loaded his trailer with codefendant Ocean Spray Cranberry, Inc.’s products, placing more goods onto it than it was designed to carry. Plaintiff further alleges that this caused the trailer to buckle and break apart, as a result of which he lost control of his vehicle and it crashed into a concrete divider. Finally, he alleges that he suffered serious injury from the incident.

[1]National Freight failed to make out a prima facie case entitling it to summary judgment and dismissal of the complaint for two reasons. First, defendant offered, and the motion court relied on, the affidavit of Scott Brucker, general counsel to nonparty NFI Management Services. Brucker states that NFI Management Services provides “management and legal services” to National Freight and nonparty National Distribution Centers LLC. However, Brucker’s affidavit was insufficient to establish that it was National Distribution Centers, and not National Freight, which provided distribution services for Ocean Spray at the subject distribution facility when the accident occurred. Although Brucker averred that he was “fully familiar with the corporate structure, governance and legal filings made and/or performed on behalf of both companies,” he does not work for National Freight. Accordingly, he has no personal knowledge of National Freight’s activities at the relevant times. Indeed, he admits as much when he states that the basis for his claimed knowledge of which entity was responsible for providing distribution services at the subject facility was his having been so “advised” by an unnamed person or persons. Accordingly, his affidavit is insufficient to establish defendant’s entitlement to summary judgment (CPLR 3212[b]; Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ).

[2]Second, defendant offered, and the motion court relied on, a copy of a distribution services agreement between Ocean Spray and National Distribution Centers, attached to defendant’s attorney’s affirmation. However, this document was not authenticated (CPLR 4518[a] ). Accordingly, it was not admissible and was not an appropriate basis on which to grant summary judgment (Zuckerman, 49 N.Y.2d at 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).

Since defendant did not make out a prima facie case for summary judgment in its favor, we need not address the arguments about the sufficiency of the opposition papers submitted by plaintiff.

*2 Because the motion court granted summary judgment on the issue discussed above, it did not reach defendant’s arguments based on the causation of the accident, and that plaintiff’s injury did not constitute a “serious injury” under Insurance Law § 5102(d). We now remand to the motion court to address those issues.

All Citations
— N.Y.S.3d —-, 2019 WL 1442097, 2019 N.Y. Slip Op. 02448