Luciano v. Islam

DECISION & ORDER In accordance with CPLR 2219(a), the decision herein is made upon consideration of all papers filed by the parties in NYSCEF in support of and in opposition to defendants JOSEPH C. ALEXANDER’s (“Alexander”) and IGOR SHEVELCHINKSY’s (“Shevelchinksy”)¹ respective motion (Seq. Nos. 2 and 3) and defendant HAFIZ AKRAM’s (“Akram”) cross-motion (Seq. No. 3) each seeking an order, pursuant to CPLR 3212, granting them summary judgment dismissing the complaint and any and all cross-claims asserted against them. For the reasons discussed below, Alexander’s motion under Motion Sequence 2 is DENIED, with leave to renew; Shevelchinksy’s motion under Motion Sequence 3 is GRANTED; and Akram’s cross-motion under Motion Sequence 3 is GRANTED. This is a personal-injury action arising from two motor-vehicle accidents, each involving multiple vehicles, occurring on January 25, 2019, at approximately 8:00 p.m., on the southbound Harlem River Drive, at or near its exit with Dyckman Street, in Manhattan, New York (the “Accident”). I. Alexander’s Motion for Summary Judgment Uniform Trial Court Rule 202.8-g(a) provides that, “[u]pon any motion for summary judgment…there shall be annexed to the notice of motion a separate, short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried.” Alexander filed his motion on May 14, 2021, well after Rule 202.8-g became effective on February 1, 2021 [Admin. Order of the Chief Admin. Judge of the Court --- No. AO/270/2020]. Yet, Alexander failed to submit a Statement of Material Facts in support of his motion. Alexander’s failure to submit a Statement of Material Facts requires that his motion be DENIED. See De Leon v. Kagansky, 2021 WL 4537869, at *1 (N.Y. Sup. Ct. Kings Cty. Sept. 30, 2021) (citing Amos Fin. LLC v. Crapanzano, 73 Misc. 3d 448, 451-55 (N.Y. Sup. Ct. Rockland Cty. 2021)). Such denial, however, is without prejudice to Alexander’s timely renewal upon proper papers complying with all applicable rules, including, of course, Rule 202.8-g(a). See id.; Medallion Bank v. Chopper Taxi Inc., 2021 WL 5861971, at *2 (N.Y. Sup. Ct. N.Y. Cty. Dec. 10, 2021). Although the Court grants Alexander leave to renew his motion, renewal will be unnecessary. Below, the Court searches the record on Shevelchinksy’s motion and, based on the evidence submitted in connection therewith, grants Alexander summary judgment dismissing the complaint and any cross-claims against him. II. Shevelchinksy’s Motion for Summary Judgment A. The Parties’ Submissions In support of his motion, Shevelchinksy submits his affidavit; an attorney affirmation; and a Statement of Material Facts. In lieu of submitting copies of the pleadings, Shevelchinksy provides the Court with references to their respective docket numbers on NYSCEF, as permitted under CPLR 2214(c). Plaintiff JOSE LUCIANO (“Plaintiff”), Alexander, Akram, and defendants MD S. ISLAM (“Islam”) and YZN TAXI INC. (“YZN”; and, together with Islam, the “YZN Defendants”) each submit opposition to the motion.² Plaintiff submits his affidavit and an attorney affirmation. Alexander submits his affidavit, an attorney affirmation, and an uncertified copy of the police accident report. Akram submits only an attorney affirmation, but that affirmation references and relies upon Akram’s affidavit submitted in support of his cross-motion, as fully addressed below. Finally, the YZN Defendants submit an attorney affirmation and an uncertified copy of Islam’s MV-104 report. Initially, because neither the police accident report nor the MV-104 report is certified, neither is admissible. See Yassin v. Blackman, 188 A.D.3d 62, 65-67 (2d Dep’t 2020); Coleman v. Maclas, 61 A.D.3d 569, 569 (1st Dep’t 2009); Rue v. Stokes, 191 A.D.2d 245, 246-47 (1st Dep’t 1993). However, because the police accident report is submitted in opposition to the motion and is not the only evidence relied on by Alexander, the Court may nonetheless consider it in deciding the motion. See Long v. Taida Orchids, Inc., 117 A.D.3d 624, 625 (1st Dep’t 2014) (“[T]he court may consider the inadmissible evidence insofar as it is not the sole basis for [the] opposition to summary judgment.”). The police accident report describes the Accident as follows: [Akram] stated that he slipped on the ice [and] his vehicle turned the opposite direction of traffic and [Alexander] hit him head on. [Alexander] stated that [Akram] rotated in front of his vehicle causing him to collide with his front bumper. [Shevelchinksy] stated that he rear ended [Alexander] due to the accident in front of him and the slippery road. [Plaintiff] stated that he braked to avoid the pileup and was rear ended by [Islam]. [Islam] stated that [Plaintiff] suddenly braked in front causing him to hit his rear bumper. No injuries. In his affidavit, Shevelchinksy avers as follows: On January 25, 2019, he was driving his vehicle southbound in the left lane of the two-lane Harlem River Drive for several minutes when Alexander’s vehicle, which had been traveling in the right lane in front of Shevelchinksy, suddenly merged partially into the left lane. Immediately after that partial merger, Alexander’s vehicle struck Akram’s vehicle. As soon as Shevelchinksy observed Alexander’s partial merger in the left lane, he applied his vehicle’s brakes but was unable to bring his vehicle to a complete stop before the front passenger-side corner of his vehicle contacted the rear of Alexander’s vehicle. After his vehicle was completely stopped, Shevelchinksy exited it and observed two vehicles stopped behind his. Those vehicles — Plaintiff’s and the YZN Defendants’ vehicles — appeared to have made contact. Shevelchinksy’s vehicle, however, never contacted either of Plaintiff’s or the YZN Defendants’ vehicles. In his affidavit, Plaintiff avers as follows: On January 25, 2019, at approximately 8:00 p.m., he was driving his vehicle southbound on the Harlem River Drive at less than the speed limit of 40 miles per hour due to the icy road conditions. He “observed three vehicles traveling ahead of [him] who [he] reasonably believe[d] were traveling at speeds above the speed limit notwithstanding the icy roadway conditions.” Suddenly, these three vehicles violently collided with each other, blocking the lanes of traffic in front of Plaintiff and requiring him to immediately apply his vehicle’s brakes. Plaintiff was able to bring his vehicle to a complete stop before colliding with any of the three vehicles. Shortly after stopping, however, Plaintiff’s vehicle was struck in the rear by the YZN Defendants’ vehicle. In his affidavit, Alexander avers as follows: On January 25, 2019, at approximately 8:20 p.m., he was driving southbound in the right lane of the two-lane Harlem River Drive. At the time, traffic was light. Akram’s vehicle was driving immediately ahead of Alexander in the left lane, so that the rear bumper of Akram’s vehicle was a few feet ahead of the front bumper of Alexander’s vehicle. Suddenly, Akram’s vehicle spun 180 degrees into the right lane, so that the front of Akram’s vehicle was facing toward the front of Alexander’s vehicle. Alexander immediately braked his vehicle but was unable to avoid a collision with Akram’s vehicle. Following that collision, Alexander’s vehicle came to a stop but was then struck in the rear by Shevelchinksy’s vehicle. Alexander subsequently exited his vehicle and saw two other vehicles behind Shevelchinksy’s vehicle that had apparently come into contact with each other. Neither Alexander’s vehicle nor Shevelchinksy’s vehicle, however, contacted either of those two other vehicles. In his affidavit, Akram avers as follows: On January 25, 2019, at approximately 12:00 p.m., he was driving southbound in the left lane of the two-lane Harlem River Drive at approximately 10 miles per hour with both hands on the steering wheel while looking straight ahead. Suddenly, Akram’s vehicle slid on a patch of black ice and turned around to the right so that it was facing toward oncoming traffic. His vehicle was then struck by Alexander’s vehicle, and Alexander’s vehicle was then struck by Shevelchinksy’s vehicle. There were two vehicles involved in an accident in the road behind Akram’s, Alexander’s, and Shevelchinksy’s vehicles, but those two vehicles never came into contact with any of Akram’s, Alexander’s, or Shevelchinksy’s vehicles. No party submitted responses to Shevelchinksy’s or Akram’s respective Statement of Material Facts. Thus, each fact properly stated in those Statements of Material Fact are deemed admitted under 22 NYCRR 202.8-g(b) & (c). Specifically, as relevant here, it is therefore deemed admitted that Akram’s vehicle slid on ice and made contact with Alexander’s vehicle; that Alexander’s vehicle was then contacted by Shevelchinksy’s vehicle; and that Plaintiff’s vehicle was struck only by the YZN Defendants’ vehicle. B. Analysis “The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering evidence sufficient to eliminate any material issues of fact from the case.” Winegrad v. N.Y. Univ. Med. Ctr., 64 N.Y.2d 851, 853 (1985). Upon such a showing, the burden then shifts to the nonmovant to “present evidentiary facts in admissible form sufficient to raise a genuine, triable issue of fact.” Mazurek v. Metro. Museum of Art, 27 A.D.3d 227, 228 (1st Dep’t 2006). Since there can be more than one proximate cause of an accident, a defendant moving for summary judgment is required to make a prima facie showing that they are free from fault. Hilago v. Vasquez, 187 A.D.3d 683, 684 (1st Dep’t 2020); Harrigan v. Sow, 165 A.D.3d 463, 464 (1st Dep’t 2018). In order for a defendant driver to establish entitlement to summary judgment on the issue of liability in a motor-vehicle-collision case, therefore, the driver must demonstrate, prima facie, that she kept the proper lookout, or that her alleged negligence, if any, did not contribute to the accident. Hilago, 187 A.D.3d at 684; Harrigan, 165 A.D.3d at 464. When deciding a summary judgment motion, a court’s role is solely to determine if any triable issues exist, not to determine the merits of any such issues. Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395 (1957). In making this determination, the court must view the evidence in the light most favorable to the party opposing the motion, and must give that party the benefit of every inference that can be drawn from the evidence. Jenack Estate Appraisers & Auctioneers, Inc. v. Rabizadeh, 22 N.Y.3d 470, 475 (2013); Vega v. Restani Constr. Corp., 18 N.Y.3d 499 (2012). Every available inference must be drawn in the nonmoving party’s favor. De Lourdes Torres v. Jones, 26 N.Y.3d 742, 763 (2016). If there is any doubt as to the existence of a triable issue, summary judgment should be denied. Rotuba Extruders, Inc. v. Ceppos, 46 N.Y.2d 223, 231 (1978). The elements of a cause of action in negligence are: “‘(1) the existence of a duty on defendant’s part as to plaintiff; (2) a breach of this duty; and (3) injury to the plaintiff as a result thereof.’” Rodriguez v. Budget Rent-A-Car Sys., Inc., 44 A.D.3d 216, 221 (1st Dep’t 2007) (quoting Akins v. Glens Falls City Sch. Dist., 53 N.Y.2d 325, 333 (1981)). In any motor-vehicle accident case, to recover on a cause of action based in negligence, there must first be a negligent act, and then that negligent act must, in turn, have been a proximate cause of both the accident and the plaintiff’s alleged injuries. See id. 221-24. “The issue of whether a defendant’s negligence was a proximate cause of an accident is separate and distinct from the negligence determination. A defendant may act negligently without that negligence constituting a proximate cause of the accident.” Id. at 222 (quoting Ohdan v. City of N.Y., 268 A.D.2d 86, 89 (1st Dep’t 2000), lv. denied 95 N.Y.2d 769). Furthermore, a “defendant’s negligence may be a proximate cause of an accident without being the proximate cause of the injuries claimed to have been sustained by the plaintiff.” Id. at 222. These legal distinctions come into play on this motion, wherein the question is whether the actions of individuals involved in one motor-vehicle accident are a proximate cause of another accident involving separate individuals and separate vehicles. Plaintiff, who was rear-ended by Islam in the second-in-time accident, argues that proximate causation exists — essentially, that if Akram, Alexander, and Shevelchinksy had never gotten into an accident in front of Plaintiff, then Plaintiff would not have needed to stop abruptly and, thus, at least one of the circumstances making Islam’s rear-ending of Plaintiff possible would never have come about. Shevelchinksy, who was involved in the first-in-time accident, argues that the undisputed facts that Plaintiff was able to bring his vehicle to a complete stop before striking Shevelchinksy’s vehicle, and that Plaintiff’s vehicle was never struck by any of the vehicles involved in the first-in-time accident, severs any causal connection between Shevelchinksy’s actions during the first-in-time accident and Plaintiff’s second-in-time accident. Under the specific facts of this case, Shevelchinksy has the better argument. It is undisputed that Shevelchinksy was the rear-most vehicle in the three-vehicle accident initiated by Akram’s vehicle hitting a patch of black ice and spinning 180° into Alexander’s right lane. According to Shevelchinksy, Alexander’s vehicle partially entered into Shevelchinksy’ left lane, and Shevelchinksy was unable to completely stop his vehicle prior to striking Alexander’s vehicle in the rear. No party to this action contends that the first-in-time accident between Akram, Alexander, and Shevelchinksy happened otherwise. Nor has any party to this action come forward and presented the Court with any reasonable, fact-based (as opposed to speculative) alternative action that Shevelchinksy could have taken in these circumstances. There were two lanes of traffic; a collision brought another vehicle into Shevelchinksy’s lane of travel; and Shevelchinksy braked but was unable to avoid colliding with it. Plaintiff has simply failed to identify where Shevelchinksy’s negligence lies in all of this. While Plaintiff does claim in his affidavit that he “reasonably believe[ed]” that Shevelchinksy was “ traveling at speeds above the speed limit notwithstanding the icy roadway conditions,” this claim is conclusory and self-serving speculation. Plaintiff provides no foundation for his purported ability to accurately judge the speed at which Shevelchinksy (or Akram or Alexander, for that matter) were traveling. Plaintiff also fails to explain how speed or the icy roads were a factor in or cause of Shevelchinksy’s part in the accident. But even assuming, arguendo, that Shevelchinksy was negligent in failing, under the then-current conditions, to maintain sufficient distance between his and Alexander’s vehicles to avoid colliding with Alexander’s vehicle when it stopped suddenly, see N.Y. Veh. & Traf. Law §1129(a); Rodriguez, 44 A.D.3d at 223-24, there still would be no proximate causal connection between that negligent act and Plaintiff’s second-in-time accident. In that hypothetical scenario, there may be a basis for liability on Shevelchinksy’s part to Alexander, as the negligent act — failing to maintain a safe distance — would have directly caused the collision between their two vehicles.³ But whether or not Shevelchinksy maintained a proper distance from Alexander’s vehicle, such that Shevelchinksy could have stopped his vehicle in time to avoid becoming involved in the enfolding accident between Akram and Alexander, is irrelevant and unrelated to Plaintiff’s own accident. Plaintiff still would have needed to stop to avoid the stopped vehicles in front of him on the highway, and Islam still would have been obligated to avoid rear-ending Plaintiff’s vehicle as it came to a stop. The necessary nexus between Shevelchinksy’s actions and Plaintiff’s accident simply does not exist even in this hypothetical scenario wherein Shevelchinksy may have been negligent. Plaintiff relies on Tutrani v. County of Suffolk, 10 N.Y.3d 906 (2008), Odikpo v. American Transit, Inc., 72 A.D.3d 568 (1st Dep’t 2010), and Bodden v. Stouall, 26 Misc. 3d 1218(A) (N.Y. Sup. Ct. Bronx Cty. 2009), to contend that proximate causation exists despite the fact that none of Akram’s, Alexander’s, or Shevelchinksy’s vehicles actually came into contact with Plaintiff’s vehicle. The facts of each of those cases are readily distinguishable, however, from the facts of this case. At issue in both Tutrani and Bodden was a lead car’s sudden stop on a highway, in circumstances in which a driver would have a reasonable expectation that traffic would continue unimpeded, without a non-negligent explanation. In Tutrani, a police officer abruptly reduced the speed of his vehicle to a near stop in order to execute a lane change on the Long Island Expressway. And, in Bodden, the lead vehicle stopped suddenly, without explanation, on the Grand Central Parkway, causing the following vehicle to brake and slide on the wet roadway into the rear of the lead vehicle. Abruptly decelerating on a highway in order to change lanes, or for no apparent reason at all, may be negligent acts. By contrast, however, abruptly decelerating on a highway in order to avoid an accident — as Shevelchinksy did in this case — is not, at least in most circumstances, a negligent act. Odikpo presents somewhat different circumstances but still fails to support Plaintiff’s position. There, as part of larger accident involving multiple vehicles, the plaintiff struck two vehicles in the center lane of a three-lane roadway. The plaintiff then brought suit in negligence against several drivers involved in the accident, including some whose vehicles never contacted the plaintiff’s vehicle. One such driver had testified that he rear-ended a vehicle in the left lane and caused it to protrude into the plaintiff’s center lane by three or four feet, after which the plaintiff struck that vehicle. The plaintiff also struck another vehicle that had first been rear-ended in the center lane by yet another driver against whom the plaintiff brought suit alleging negligence. Although both drivers who first struck the vehicles with which the plaintiff ultimately collided never actually came into direct contact with the plaintiff’s vehicle, the First Department, relying on Tutrani, held that that fact “does not negate a finding of causation as to either party.” 72 A.D.3d at 569. In the specific factual context of Odikpo, there were negligent acts by the defendant drivers that caused other vehicles to be in a position to be struck by the plaintiff. A direct causal nexus existed between the defendant drivers’ negligent actions and the plaintiff’s collisions. The same cannot be said, however, about Shevelchinksy’s actions in this case. Plaintiff and the YZN Defendants also contend that the motion should be denied as premature because depositions of the parties have yet to take place. A summary-judgment motion as to liability is not, as a rule, premature, however, where the parties to the accident have submitted affidavits. Salodkaya v. City of N.Y., 193 A.D.3d 604 (1st Dep’t 2021). Moreover, “[t]he mere hope that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny such a motion.” Downey v. Mazzioli, 137 A.D.3d 498, 499 (1st Dep’t 2016) (internal quotation marks and citation omitted). It is evident from Plaintiff’s and the YZN Defendants’ filings that they merely hope to uncover evidence that might allow them to defeat Shevelchinksy’s motion, rather than having identified any relevant, non-speculative matter that resides within the exclusive knowledge of one of the defendants. For the reasons discussed above, Shevelchinksy has satisfied his prima facie burden on the motion, and the opposition has failed to raise a triable issue of material fact. Accordingly, Shevelchinksy’s motion is GRANTED. Finally, pursuant to CPLR 3212(b), “Supreme Court…may search the record and grant summary judgment to a nonmoving party.” JMD Holding Corp. v. Congress Fin. Corp., 4 N.Y.3d 373, 385 (2005) (citing CPLR 3212(b)); A.C. Transp., Inc. v. Bd. of Educ. of City of N.Y., 253 A.D.2d 330, 338 (1st Dep’t 1999) (“It is well settled that, in deciding the propriety of a summary judgment motion, a court (even an appellate court) may search the record and grant summary judgment to the nonmoving party on any related claim.”). Here, the Court searches the record and concludes, based on the admissible evidence and caselaw discussed herein, that Alexander is also entitled to summary judgment dismissing the complaint and any cross-claims asserted against him. There is no dispute that Alexander was simply driving in the right lane of the Harlem River Drive when Akram’s vehicle spun into his lane from the left lane. As with Shevelchinksy, no party has come forward and presented the Court with any reasonable, fact-based (as opposed to speculative) alternative action that Alexander could have taken in these circumstances to avoid colliding with Akram. III. Akram’s Cross-Motion for Summary Judgment In support of his motion, Akram submits his affidavit (with an accompany translator’s affidavit); the affidavits of Alexander and Shevelchinksy; an attorney affirmation; copies of the pleadings; and an uncertified copy of the police accident report. The contents of each of these affidavits and of the police accident report have already been summarized above in the context of Shevelchinksy’s motion. Plaintiff, Alexander, Shevelchinksy, and the YZN Defendants each submit opposition to Akram’s cross-motion. Plaintiff and the YZN Defendants present essentially the same arguments in opposition to Akram’s cross-motion as they do in opposition to Shevelchinksy’s motion. For the same reasons as discussed above, these arguments are rejected. There is no dispute here that Akram’s vehicle spun into the right lane after sliding on black ice. And no party has come forward with admissible and non-speculative evidence that Akram was driving his vehicle negligently prior to sliding on the ice. Alexander contends that the first accident involving himself, Shevelchinksy, and Akram is irrelevant to the second accident involving Plaintiff and Islam, but if the Court were to find that the first accident is relevant, Akram’s cross-motion should be denied because he admitted that he caused the first accident. Shevelchinksy merely contends that if his motion is denied, then Akram’s cross-motion should also be denied. Akram has, therefore, satisfied his prima facie burden on the motion, and the opposition has failed to raise a triable issue of material fact. Accordingly, Akram’s cross-motion is GRANTED. The Court has considered the additional contentions of the parties not specifically addressed herein. To the extent that any relief requested by the movant was not addressed by the Court, it is hereby denied. Accordingly, it is hereby: ORDERED that defendant JOSEPH C. ALEXANDER’s motion (Seq. No. 2) seeking an order, pursuant to CPLR 3212, granting him summary judgment dismissing the complaint and any and all cross-claims asserted against him is DENIED, with leave to renew; and it is further ORDERED that defendant IGOR SHEVELCHINKSY’s motion (Seq. No. 3) seeking an order, pursuant to CPLR 3212, granting him summary judgment dismissing the complaint and any and all cross-claims asserted against him is GRANTED; and it is further ORDERED that the Court, upon searching the record on the instant motions, grants summary judgment to defendant JOSEPH C. ALEXANDER dismissing the complaint and any and all cross-claims asserted against him; and it is further ORDERED that defendant HAFIZ AKRAM’s cross-motion (Seq. No. 3) seeking an order, pursuant to CPLR 3212, granting him summary judgment dismissing the complaint and any and all cross-claims asserted against him is GRANTED; and it is further ORDERED that the Clerk shall enter judgment dismissing the complaint and any and all cross-claims against defendants JOSEPH C. ALEXANDER, IGOR SHEVELCHINKSY, and HAFIZ AKRAM and severing the remaining action; and it is further ORDERED that the caption of this action shall henceforth read as: JOSE LUCIANO, Plaintiff, v. MD S ISLAM and YZN TAXI INC., Defendants and it is further ORDERED that the Clerk shall mark Motion Sequences 2 and 3 disposed in all Court records. This constitutes the decision and order of the Court. 1. CHECK ONE     CASE DISPOSED IN ITS ENTIRETY X       CASE STILL ACTIVE 2. MOTION SEQ 2 IS            GRANTED X            DENIED    GRANTED IN PART  OTHER 3. MOTION SEQ 3 IS X         GRANTED                DENIED    GRANTED IN PART  OTHER 4. CHECK IF APPROPRIATE SETTLE ORDER       SUBMIT ORDER       SCHEDULE APPEARANCE      FIDUCIARY APPOINTMENT      REFEREE APPOINTMENT X    EDIT CAPTION Dated: May 17, 2022