The following numbered papers were read on this motion: NYSCEF Doc No. 17: Notice of Motion for Summary Judgment NYSCEF Doc No. 18: Affirmation of Melissa A. Marano, Esq. in Support NYSCEF Doc No. 19: Statement of Material Facts Pursuant to Uniform Rules 202.8-g NYSCEF Doc No. 20: Exhibit A — Summons and Verified Complaint NYSCEF Doc No. 21: Exhibit B — Verified Answer With Counterclaim NYSCEF Doc No. 22: Exhibit C — Reply to Counterclaim, Demand for Verified Bill of Particulars NYSCEF Doc No. 23: Exhibit D — Affidavit of Defendant Carlos Morales NYSCEF Doc No. 24: Exhibit E — Photographs of Chevy Blazer SUV NYSCEF Doc No. 25: Exhibit F — Affidavit of Johannah Morales (“Defendant “Jane Doe”) NYSCEF Doc No. 26: Proposed Order NYSCEF Doc No. 27: Affidavit of Service of Melissa A. Marano, Esq. NYSCEF Doc No. 29: Affirmation of Marius C. Wesser, Esq. in Opposition NYSCEF Doc No. 30: Exhibit A — Examination Under Oath of [Segundo] Julio Matute Fernandez NYSCEF Doc No. 31: Exhibit B — Examination Under Oath of Blanca Luzuriaga [Montoya] NYSCEF Doc No. 32: Exhibit C — MV-104 Form NYSCEF Doc No. 33: Reply Affirmation of Melissa A. Marano, Esq. NYSCEF Doc No. 34: Affidavit of Service of Melissa A. Marano, Esq. DECISION AND ORDER I. Background This is a tort-motor vehicle action that arises from a collision that allegedly occurred on November 18, 2019, at approximately 6:37 a.m., at or near the intersection of Lee Avenue with Heyward Street1, in the borough of Brooklyn, New York. It is alleged by Plaintiffs that the subject vehicle, owned by Carlos Morales, Jr. (“Morales”) and purportedly operated by his wife Johanna Morales (“Johanna”) (collectively “Defendants”)2, rear-ended the motor vehicle owned by Bianca E. Luzuriaga Montoya (“Montoya”), and operated by Segundo J. Matute Fernandez (“Segundo”) (collectively “Plaintiffs”). As a result of the collision, Segundo and Montoya claim to have suffered injuries meeting the serious injury threshold under New York law. However, as the MV-104 form completed by Segundo (NYSCEF Doc No. 32) indicates, the driver who caused the collision fled the scene, yet Segundo was able to identify the offending vehicle as a Chevy Blazer with license plate number GYU4068, which is owed by Morales. Therefore, Plaintiffs bring this action against Morales and his wife Johanna (named in the case caption as unknown defendant “Jane Doe”). At this juncture, Defendant Morales now moves this Court to grant summary judgment in his favor and dismiss Plaintiffs’ action against him.3 II. Defendants’ Argument Defendant Morales’ summary judgment motion seeking dismissal of the complaint is based on the claim that he did not breach any duty owed to Plaintiffs and, therefore, is not a proximate cause of the subject accident. Specifically, Morales refers to his and his wife Johanna’s sworn affidavits (see NYSCEF Doc Nos. 23, 25), claiming that neither of them were involved in a motor vehicle accident on November 18, 2019. In fact, Morales maintains, his Chevy Blazer was parked by their home in Poughkeepsie, NY, and was not in Brooklyn where the accident occurred. Similarly, Johanna swore that she did not operate the vehicle on that date and that the vehicle remained at their home. (See NYSCEF Doc Nos. 18, 25.) In furtherance of their claim and to rule out the possibility that the vehicle was ever involved in the subject accident, Morales annexes as an exhibit photographs which depict their vehicle free of any visible physical damage (see NYSCEF Doc No. 24). Morales also argues that the MV-104 form Plaintiffs rely on is inadmissible hearsay, as it is not notarized and was created days after the accident took place, on November 26, 2019. (See generally NYSCEF Doc Nos. 18, 23, 25, 33.) Defendant Morales’ argument follows that if there is no evidence establishing that his vehicle was even involved in the accident, then there cannot be evidence establishing that his wife Johanna was the proximate cause of that accident. Therefore, Morales concludes there are no genuine issues of material fact relating to their breach of duty or proximate causation of the accident that can sustain the instant action and, so, summary judgment should be granted in his favor and the action immediately dismissed. (See generally id.) III. Plaintiffs’ Argument Plaintiffs argue that summary judgment should be denied as triable issues of fact do exist regarding whether Morales’ vehicle was involved in the subject accident, which would go to the breach of duty and causation elements of the tort of negligence. In particular, Plaintiffs rely on Segundo’s deposition testimony in which he asserted that his vehicle was rear-ended by a vehicle driven by a “Spanish” female around 40 years old (see NYSCEF Doc No. 30 at 16-17). He then testified as follows: Q. What was the conversation with you and her about? A. I got out of vehicle and I asked her what happened, what happened to you, and she said I’m so sorry, I leaned forward to pick up a cup of coffee that had fallen. Q. What happened next? A. Then I told her to pull over to the side since there was traffic so that we can address the issue and then I pulled over to the side, but her, instead of parking, she just left. Q. Did you get the plate number for her vehicle? A. Yes, since she didn’t stop it forced me to go after her to find out why she didn’t stop so that made me get her license plate number. Q. Did she ever stop after you followed her? A. No, no. She continued. Q. I’m looking at the MV-104 which you apparently signed. You signed it on November 26th, 2019. You put on it that the other vehicle was a Chevy Blazer SUV with New York registration GYU4068? A. Yes, perfect. (Id.) Plaintiffs point out well settled law that this Court must view the evidence in the light most favorable to them as the non-moving parties and that all reasonable inferences are to be drawn in their favor (citing Ansonia Assoc. Ltd. Partnership vc. Public Serv. Mut. Ins. Co., 257 AD2d 84 [1st Dept 1999]). They further seek to take a sworn deposition of Johanna. This Court’s role, they urge is to engage in issue finding, not issue determination (citing Rose vc. Da Ecib USA, 259 AD2d 258 [1st Dept 1999]). IV. Discussion Summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law (see Alvarez vc. Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad vc. New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Andre vc. Pomeroy, 35 NY2d 361, 364 [1974]). The party moving for summary judgment must present a prima facie case of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form demonstrating the absence of material issues of fact, and the failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see CPLR 3212 [b]; Smalls vc. AJI Industries, Inc., 10 NY3d 733 [2008]; Alvarez, 68 NY2d at 324). Once a prima facie showing has been made, however, the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution or tender an acceptable excuse for the failure to do so; mere expressions of hope are insufficient to raise a genuine issue of fact (see Zuckerman vc. City of New York, 49 NY2d 557 [1980]). If there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied (see Rotuba Extruders, Inc. vc. Ceppos, 46 NY2d 223, 231 [1978]). Through the affidavits of Morales and Johanna, said Defendants made out a prima facie case of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form demonstrating the absence of material issues of fact. They would have this Court believe that their vehicle was parked outside of their home in Poughkeepsie all day, nowhere near where the accident occurred in Brooklyn — that there is no question as to Johanna breaching any duty of care owed to Plaintiffs and causing the accident. However, Segundo has shown, through his deposition testimony — evidence in admissible form — that Defendants’ vehicle was in fact the vehicle that struck the one which he and his wife occupied and then fled the scene. Segundo had sufficient time to record Morales’ vehicle’s license plate number. He then submitted the MV-104 form concerning accident, which corroborated the aforementioned plate number as that of the fleeing vehicle, to the Department of Motor Vehicles. (See NYSCEF Doc No. 30 at 16-17; NYSCEF Doc No. 32.) The motion before this Court is a classic example of a genuine issue regarding the material facts of the case that require it to deny a motion for summary judgment. Defendants points to their own testimony and argue it definitively establishes that Morales’ vehicle was never even present at the scene of the accident and so the action must be dismissed as a matter of law. Plaintiffs, on the other hand, point to Segundo’s deposition testimony seeking to establish the involvement of Defendant Morales’ vehicle and Johanna as the presumed operator of that vehicle which fled the scene. There is undoubtedly conflicting testimony between the parties as to the events that transpired and apparently even about the parties involved. In rebuttal, Defendant Morales argues that Segundo’s deposition testimony was insufficient because he “did not testify he has independent recollection of the license plate number of the vehicle which impacted him in the rear. Plaintiff also did not testify he observed the license plate number and either presently remembers it or wrote it down contemporaneously with the time of the accident so as to qualify under an exception to the hearsay rule such as past recollection recorded.” (NYSCEF Doc No. 33 9.) The MV-104 form submitted by Segundo was “not certified, not notarized and without waiving any objection thereto, clearly was not created contemporaneously with the accident” (id. 11). This Court rejects Defendant Morales’ argument concerning the evidence submitted by Plaintiffs in opposition. Segundo’s deposition testimony, given under oath, in effect authenticated the MV-104 form which listed Morales’ Chevy Blazer’s license plate number; the make and model of the offending vehicle also. This evidence more than sufficed to create an issue of fact as to whether Morales’ vehicle was used by someone, perhaps Johanna, and struck the Plaintiffs’ vehicle in the rear. It is noted that Segundo testified in detail how the offending driver drove off after he spoke to her, and how he chased it in order to obtain the license plate number. It is obvious from Morales’ testimony that he himself obtained the license plate number. Further, the deposition testimony contains the license plate number, so it is irrelevant that the MV-104 form was “not certified, not notarized and…not created contemporaneously with the accident,” as Defendant Morales argues. This is not a situation where the deposition testimony contained hearsay (cf. Watson vc. Paschel, 188 AD3d 1693 [4th Dept 2020]). Moreover, Montoya testified at her deposition that the driver of the vehicle which struck them was a female Latina who told her husband that she was sorry because she dropped a cup of coffee. She also testified that “my husband drove very fast to follow the lady” and “my husband took her plates.” (NYSCEF Doc No. 31 at 17-19.) This corroborated Segundo’s deposition testimony. In Delgado vc. Sikora (227 AD2d 176 [1st Dept 1996]), the court wrote: “In this personal injury action arising out of a hit and run automobile accident, defendant’s testimony at deposition that at the time of the accident, his vehicle was parked at his place of employment and he possessed the only set of keys to it was insufficient to eliminate issues of fact, including the identity of the car involved in the accident, and, if it were defendant’s vehicle which was so involved, the presumption of permissive use imputed to the owner under Vehicle and Traffic Law §388.” “To obtain summary judgment it is necessary that the movant establish his cause of action or defense ‘sufficiently to warrant the court as a matter of law in directing judgment’ in his favor (CPLR 3212, subd [b]), and he must do so by tender of evidentiary proof in admissible form. On the other hand, to defeat a motion for summary judgment the opposing party must ‘show facts sufficient to require a trial of any issue of fact’ (CPLR 3212, subd [b]).” (Friends of Animals vc. Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979].) However, although the opposing party must make his showing in admissible form, the rule with respect to defeating a summary judgment motion “is more flexible” (id. at 1068). Therefore, Defendant Morales’ argument that Plaintiff Segundo did not testify literally that he observed the license plate number, had independent recollection of it, and either presently remembered it or wrote it down contemporaneously is insufficient to denude Segundo’s testimony enough to vitiate it in opposing the summary judgment motion. Any questions regarding how he obtained the license plate number raise “a credibility issue…to be decided by the jury, not the court on a motion for summary judgment” (DiGiantomasso vc. City of New York, 55 AD3d 502, 503 [1st Dept 2008]). “Summary judgment should be denied where there is any doubt, at least any significant doubt, whether there is a material, triable issue of fact…. Rules of evidence should be guardedly and cautiously applied on an application for summary judgment, particularly where there are many exceptions to general rules and where the application of a rule of evidence or the exceptions thereto can best be determined upon evidence offered at a trial….” (Phillips vc. Joseph Kantor & Co., 31 NY2d 307, 311-312 [1972] [citations and quotation marks omitted].) Plaintiffs here have submitted sufficient evidence to establish the existence of a material issue of fact — whether Morales’ Chevy Blazer struck them in the rear — that requires a trial for resolution (see Zuckerman, 49 NY2d 557). Certainly Defendants have created at least a doubt as to the veracity of Defendants’ evidence and, therefore, the Morales’ motion for summary judgment must be denied (see Rotuba Extruders, Inc., 46 NY2d 223, 231 [1978]). V. Conclusion It is hereby ORDERED that Defendant Carlos Morales’ motion for summary judgment is DENIED. Dated: September 1, 2023
