MACIA HALL and RICHA HAL.

Transcription

1 SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK PRESENT: HON. DANIEL MATIN Acting Supreme Court Justice TRI/IAS, PART QUANNE TOMLINSON and CAROLINE THEAR. NASSAU COUNTY DILCIA DE LA CUESTA and JOSE DE LA CUESTA, as Administrators of the Estate of EMEL Y DE CUESTA, CHRISTINA MARIE THEODULE a/k/a CHRSTINA THEODULE, deceased, by her Administrators, RAY THEODULE and MARIE THEODULE, RAY THEODULE and MARIE THEODULE, Individually Plaintiffs. Sequence No. 003, 004, against - Index No.: /04 BMW FINANCIAL SERVICES NA., LLC, FINANCIAL SERVICES VEHICLE TRUST, DA VEREL HALL, MACIA HALL and RICHA HAL. Defendants. BMW FINANCIA SERVICES NA, LLC, FINANCIAL SERVICES VEHICLE TRUST. Third-Party Plaintiffs. - against - FIESTA LA REVISTA, INC. d/b/a BABALU NIGHT CLUB. Third-Party Defendants. The followin2 named papers have been read on this motion: Notil'P of Motion S1nel A ffiels1vit!i A nnpypel N otil'p of C'ro!i!i M otion!i S1nel A ffiel S1vit!i A nnpypel.. n!iwprin g A ffiels1vit!i RpV' ying A ffiels1vit!i Papers Num ered Plaintiff Quane Tomlinson moves for summar judgment in his favor on the issue of liabilty. Defendant Caroline Theard moves for I) summar judgment in her favor on the issue

2 ofliability; and 2) for a "special preference" pursuant to CPLR g3212(c). Plaintiffs Dilcia and Jose De La Cuesta, as administrators ofthe estate of Emely De La Cuesta cross-move for summar judgment in their favor on the issue of liabilty and for an order severing the third-par action. Plaintiffs Ray and Mare Theodule as administrators of the estate of Chrstina Mare Theodule aia Chrstina Theodule cross-move for summar judgment in their favor on the issue of liability. Upon reading the papers submitted and due deliberation having been had herein, the motions and cross-motions are hereby granted as set forth below. The following facts are not in dispute. On or around July 12, 2004 Quane Tomlinson Caroline Theard, Emely De La Cuesta and Chrstina Theodule were passengers in the BMW automobile owned in title by defendants BMW Financial Services, NA, LLC and Financial Services Vehicle Trust, owned in registration by defendants Marcia and Daverel Hall and operated by their son, Richard D. Hall. On that date the automobile was involved in a one-car collsion, resulting in the deaths of Emely De La Cuesta, Chrstina Theodule and Richard D. Hall. Plaintiffs Tomlinson and Theard both suffered personal injures. Plaintiffs Tomlinson and Theard commenced this action and the estates of the deceased passengers commenced a separate action under Index Number /04 against defendants asserting claims based upon defendant Richard D. Hall' s negligence and the other defendants' statutory responsibility based on ownership of the vehicle. Defendants have answered and plaintiffs move for inter alia summar judgment in their favor on the issue of liabilty on the basis that no issues of fact exist as to Richard D. Hall' s negligence herein. In moving for summar judgment movants must demonstrate that there are no issues of fact which would preclude summar judgment by the tender of evidence in admissible form. Zuckerman v. City of New York, 49 N.Y.2d 557 (1980). In opposing the motion for summar judgment, defendants must demonstrate an issue of fact though admissible evidence. Zuckerman v. City of New York, supra. In their respective affidavits in support of their motions, plaintiffs Quane Tomlinson and Caroline Theard aver that on July 12, 2004 each was one of five passengers in the BMW. While traveling eastbound on the Nortern State Parkway, Richard Hall, the vehicle s operator lost control of the car and veered off the road and strck a tree. As a result, Mr. Tomlinson and Caroline Theard assert that they sustained serious injures. They both further aver that they in no way contrbuted to the happening of the accident. Plaintiffs also argue that based upon Richard D. Hall', the operator, negligence that pursuant to Vehicle and Traffc Law g388 the owners of the vehicle are likewise liable. The Theodule and De La Cuesta plaintiffs all adopt the positions taken by Tomlinson and Theard in their respective motions. Generally, the operator of an automobile is required to "operate his vehicle with reasonable care with regard to the actual and potential hazards existing from road and traffic

3 conditions; to have his automobile under reasonable control; and see that which under the facts and circumstances he should have seen by the proper use of his senses (citations omitted). McCarhy v. Miler, 139 A. 2d (2 Dep t 1988). See, also Oberman v. Alexanders Rent- Car, 56 A.D.2d 814 (1 Dep t 1977); Pincus v. Cohen, 198 A.D.2d 405 (2 Dep t 1993). It is undisputed that the subject accident was a one car accident and that Richard Hall was the drver. In a case similar to the instant one, the Appellate Division, Second Deparent held that plaintiff met his burden of demonstrating entitlement to summar judgment pursuant to the doctrne of res ipsa- loquitor where the vehicle left the road and strck a tree and there were no remaining eyewitnesses. See, e. Cebula v. Bonmine, 92 A. 2d 856 (2 Dep t 1983). Accordingly, the court finds that plaintiffs have met their prima facie burden of demonstrating entitlement to summar judgment as against Richard D. Hall based upon this defendant' negligence. Plaintiffs have fuher met their burden vis-a-vis the "owner" defendants. Pursuant to Vehicle and Traffc Law g388(1) every owner of every vehicle used or operated in New York State is liable for death or injures to person or propert resulting from the negligent use of the vehicle. Owners include both the title and registration owners of the vehicle. Vehicle and Traffc Law gg388(3) and 128. Based upon the foregoing, the cour concludes that plaintiffs have made prima facie demonstrations of entitlement to summar judgment. Plaintiffs having met their prima facie burdens of demonstrating entitlement to summar judgment, the burden shifts to defendants to demonstrate an issue of fact which precludes summar judgment. Zuckerman v. City of New York, supra. In opposition defendants argue that an issue of fact may exist as to whether the passengers were comparatively negligent by riding in a car with a drver they may have known was under the influence of alcohol. Counsel for the BMW defendants points to the deposition testimony of plaintiffs Quane Tomlinson and Caroline Theard in which they testified that prior to the accident Richard Hall and the passengers were at a night club Babalu, at which alcohol was served and which has been sued as a third-par defendant by defendants BMW Financial and Financial Services on a dram shop liabilty claim. (See, deposition transcripts of Quane Tomlinson, pp and Caroline Theard, pp ). Defendants assert that fuher discovery is necessar in order to properly determine these issues. While it has been held that a passenger may have assumed the risk of riding with a known intoxicated drver (see Ciserano v. Sforza, 130 A. 2d 618), the cour finds that defendants have failed to raise an issue of fact or otherwise lead the cour to conclude that the motions for summar judgment should be denied. Having reviewed Quane Tomlinson and Caroline Theard' s deposition testimony, the cour notes that both testified that nothing in Richard D. Hall' s demeanor would lead them to believe that he had been consuming alcohol. (See, deposition transcripts of Quane Tomlinson pp and Caroline Theard, pp ). The defendant cites the cour to nothing more than

4 vague references to the place that the pares went to prior to the accident. The cour concludes that there was no testimony elicited that these plaintiffs observed Richard D. Hall consuming alcohol which would raise an issue of fact as to whether plaintiffs could reasonably have suspected Richard D. Hall of being under the influence of alcohol. At his deposition, plaintiff Quane Tomlinson testified that he did not observe Mr. Hall drnk or eat anything while at Club Babalu nor that he was informed that Mr. Hall had consumed any alcohol at that time. (See deposition transcript of plaintiff Quane Tomlinson, pp ). Caroline Theard testified that 1) she only observed Mr. Hall drnk out of a cup; 2) did not know the contents of the cup; and 3) did not see Mr. Hall drnk anything else at Club Babalu. (See, deposition transcript of plaintiff Caroline Theard, pp ). As set forth above, defendants are required to present admissible evidence to raise an issue of fact. Defendants rely upon copies of a toxicology report and a police report for their position that Richard Hall was under the influence of alcohol. Same is not certified or otherwise authenticated and is therefore not in admissible form. Further, the issue purortedly raised, but whether the defendants is not whether the drver was under the influence of alcohol passengers could reasonably be expected to understand that he was. The evidence relied upon by defendants above is in insufficient form and irrelevant for puroses of raising a trable issue of fact. Neither do defendants raise an issue of fact based upon the testimony of plaintiffs outlined above. Any claim that such testimony itself is not dispositive on the issue of whether the passengers should have reasonably known that Richard D. Hall was drnkng would require improper speculation. See, e. Szczotka v. Adler 291 A. 2d 444 (2 Dep t 2002). The cour also finds that defendats ' position that additional discovery is necessar is unavailing. Specifically, counsel points out that anticipated depositions of the non- par witnesses employed by third-par defendant Babalu may shed light on this issue. This cour, by short form order dated Januar certified the matter on the basis that the paries had not completed discovery as directed by the cour' s preliminar conference orders dated March 7, 2005 and September 27, 2005 respectively. Discovery is therefore complete herein and the cour wil not direct the paries to conduct any further discovery herein. Also, the defendant' s offer no reason why that discovery was not completed during the almostfnh year this matter was in discovery. Plaintiffs' depositions were taken in July, 2005 and the defendants knew from at least that time that the paries had been at Babalu prior to the accident. Defendants offer no other proof in admissible form which raises issues of fact as to either Richard Hall' s negligence or the comparative negligence of any passenger in the car. Accordingly, the court grants plaintiffs ' motions for summar judgment on the issue liability. That branch of plaintiffs De La Cuesta s motion for an order severing the third- par action is granted and that matter is stayed by virte of third-par defendant's pending banptcy petition. See, 11 USC g362(a).

5 The matter is hereby set down for tral on damages before the Calendar Control Par (CCP) on April 27, 2006 at 9:30 a.m. Plaintiff Quane Tomlinson shall file a note of issue on or before March 31, A copy of this order shall be served upon the County Clerk when the note of issue is fied. Failure to file a note of issue or appear as directed shall be deemed an abandonment of the claim giving rise to the tral. A copy of this order shall be served upon defendants by March 31, So Ordered. Dated: March ENTERED MAR rY COUNTY CLERK' S OFFICE