| Bright v McGowan |
| 2009 NY Slip Op 04332 [63 AD3d 1239] |
| June 4, 2009 |
| Appellate Division, Third Department |
| Travis J. Bright, an Infant, by His Parent and Guardian, GaryBright, et al., Appellants, v Nancy E. McGowan et al.,Respondents. |
—[*1] Gordon & Silber, P.C., New York City (Shadrach A. Stanleigh of counsel), forrespondents.
McCarthy, J. Appeal from an order of the Supreme Court (Sackett, J.), entered April 7, 2008in Sullivan County, which granted defendants' cross motion for summary judgment dismissingthe complaint.
This negligence action stems from a collision between a vehicle driven by 16-year-oldplaintiff Travis J. Bright and a school bus driven by a school bus driver with 16 years ofexperience, defendant Nancy E. McGowan. The accident occurred at the crest of a hill on a16-foot-wide rural road with no center line markings. At issue is an order of Supreme Courtgranting summary judgment to McGowan and her employer, defendant First Student Inc.,dismissing the complaint against Bright and his father, derivatively. We affirm.[FN1][*2]
Although not specifically challenged, we begin by notingthat defendants satisfied their initial burden of establishing entitlement to summary judgment asa matter of law with proof that Bright caused the accident by traveling into McGowan's lane oftraffic. According to McGowan's examination before trial testimony, as she crested the hill justprior to the accident, she was in her own lane of travel at all times, maintaining a one-footdistance from the right shoulder. She testified that Bright was driving "at a very high rate ofspeed"[FN2] in the opposite direction when his car crossed the center of the road and came "head on" at thebus. She applied her brakes and attempted to move to the right to avoid a collision, to no avail.At the time of impact, according to McGowan, she was either totally stopped or going no morethan two miles per hour.
In addition to McGowan's testimony, defendants submitted the sworn testimony of two StatePolice collision reconstructionists who were present at the scene and who opined, based on theroadway evidence and their training, that the accident was caused by Bright's vehicle travelingleft of the center of the roadway and into McGowan's lane of travel. It was further establishedthrough their testimony that Bright's vehicle rotated following the collision, at which time itsundercarriage created gouge marks within his lane of travel.
Defendants also submitted the sworn affidavit of a licensed professional engineer whoreviewed the State Police evidence and inspected the accident scene. This expert likewise opinedthat the collision occurred in McGowan's lane and refuted any notion that the presence of gougemarks in Bright's lane of travel had any significance in pinpointing the point of impact. He, too,opined that the gouge marks were made after the impact as Bright's vehicle rotated toward itsfinal resting place. This proof was sufficient to meet defendants' initial burden as the proponentsof summary judgment (see e.g.Hazelton v D.A. Lajeunesse Bldg. & Remodeling, Inc., 38 AD3d 1071, 1072 [2007];Simpson v Simpson, 222 AD2d 984, 985 [1995]), thus shifting the burden to plaintiffs tocome forward with evidentiary proof in admissible form sufficient to raise a question of fact orto provide an acceptable excuse for the failure to do so (see Zuckerman v City of NewYork, 49 NY2d 557, 562 [1980]).
In opposing summary judgment, plaintiffs submitted an unsworn and improperly notarizedletter from an accident reconstructionist in which the expert opined that the gouge marks in theroad indicated that the impact occurred in Bright's lane of travel. Inasmuch as this letter isunsworn, with no excuse for the deficiency having been offered (cf. Maldonado v TownsendAve. Enters., Ltd. Partnership, 294 AD2d 207, 208 [2002]; Wilcox v Winter, 282AD2d 862, 863-864 [2001]), it was not in admissible form and of no probative value (seeCarringi v International Paper Co., 184 AD2d 137 [1992]; Clifford v Black ClawsonCo., 145 [*3]AD2d 808, 810 [1988], lv dismissed 73NY2d 995 [1989], lv denied 76 NY2d 714 [1990]; see also 1212 Ocean Ave. Hous. Dev. Corp. v Brunatti, 50 AD3d1110, 1112 [2008]; Ritts v Teslenko, 276 AD2d 768, 769 [2000]; Woodard vCity of New York, 262 AD2d 405 [1999]). Furthermore, the letter contains no foundationaldetails or analysis underlying the opinion that the gouge marks represented the point of impact,and further failed to address the contrary findings by defendants' experts, thereby providing anadditional and independent basis upon which to reject its efficacy in defeating summaryjudgment (see Clough vSzymanski, 26 AD3d 894 [2006]; see also Butler v City of Gloversville, 52 AD3d 896, 898-899[2008]; Preston v Peter Luger Enters.,Inc., 51 AD3d 1322, 1323 [2008]; McCain v Larosa, 41 AD3d 792 [2007]; Roman v Vargas,182 AD2d 543, 545 [1992]).
Finally, we are also unpersuaded that the examination before trial testimony of the passengerin Bright's car, even viewing it in a light most favorable to plaintiffs, raised a triable issue of fact(see Simpson v Simpson, 222 AD2d at 896). Suffice it to say, the passenger's testimonywas self-contradictory and equivocal as to whether he actually saw the accident in the first placeand whether McGowan crossed into Bright's lane prior to impact. We are unable to conclude thatsuch testimony constitutes sufficient evidentiary proof to rebut defendants' clear and unequivocalshowing, based on both factual evidence and expert proof, that Bright caused this accident bycrossing into McGowan's lane of travel (see Regula v Ford Motor Credit Titling Trust,280 AD2d 843, 844 [2001]; Wood v Converse, 263 AD2d 860, 861 [1999]; Simpsonv Simpson, 222 AD2d at 896; seegenerally Beverage Mktg. USA, Inc. v South Beach Beverage Co., Inc., 58 AD3d 657,658 [2009]; Bachurski v Polish &Slavic Fed. Credit Union, 33 AD3d 739, 740 [2006]; Urbano v Plaza MaterialsCorp., 262 AD2d 307, 308 [1999]).
In our view, the dissent omits the full panoply of the self-contradictory and equivocal natureof the passenger's testimony during his examination before trial and we are simply unpersuadedthat any version of it was sufficiently clear and unequivocal to raise a question of fact. In short,the passenger contradicted himself on three major points—whether he saw the bus prior tothe accident, whether he actually saw the accident itself and, if he did see the accident, where thebus was at the time. The passenger initially testified in no uncertain terms that he did not see thebus prior to the accident and twice answered that he was looking at the radio "when the accidenthappened." He later contradicted himself on both points by testifying that he saw the bus as theycrested the hill and that he did see the accident happen.
He then acknowledged in a follow-up question that "the bus was traveling in the westboundlane (i.e., in its own lane of travel)." When asked "where in connection with that westbound lanedid [he] see the bus . . . in the middle of the westbound lane, . . .toward the right of the westbound lane, [or] towards the left of the westbound lane," thepassenger answered, "it wasn't like—she wasn't on our side of the road but shewasn't, you know, as far over as she possibly could [be]" (emphasis added). He then twicecontradicted himself on this point by first testifying that he did not know if the bus crossed thecenter line[FN3] and later testifying that it did [*4]cross the center line by "maybea foot."[FN4]He even backed off of this approximation by testifying that he did not know.[FN5]
In short, even viewing it in a light most favorable to plaintiffs, the passenger's testimony wasequivocal and self-contradictory and thus wholly insufficient to raise a question of fact sufficientto defeat summary judgment, particularly in the face of uncontradicted expert proof as to thelocation and cause of the accident (see id.).
Plaintiffs' remaining contentions have been reviewed and found to be unpersuasive.
Peters, Lahtinen and Kane, JJ., concur.
Cardona, P.J. (dissenting). In my opinion, the EBT testimony of Christopher Franke, whowas the passenger in the vehicle driven by plaintiff Travis J. Bright, creates a question of fact asto whether the school bus was partially over the center line at the time of the accident. Therefore,I would reverse Supreme Court's order and deny defendants' cross motion for summaryjudgment.
Franke initially testified that he did not see the school bus prior to the accident and that hewas looking at the radio when the accident happened. However, as his testimony continued, hestated that he only briefly looked at the radio immediately prior to the collision, then looked upin time to note that the bus was encroaching into their lane of travel by about a foot beforeimpact. The majority characterizes this testimony as self-contradictory and equivocal and,concededly, on its face it appears to be inconsistent. However, when Franke's statements areconsidered in the context of his entire testimony wherein he was able to elaborate more fullyupon the circumstances surrounding the collision, his earlier responses are clarified by his later,more thorough description of the accident. The gist of that description is that as Bright's car wasapproaching the crest of the hill where the accident occurred, Franke was looking at the radio,either changing the station or changing a CD. Then, a few seconds before impact, he looked upand saw the bus coming. He had time to observe that it was about one foot over the center linebefore the left front corner of Bright's car collided with the left front corner of the bus. Viewed ina light most favorable to plaintiffs, this testimony creates a triable question of fact that defeatssummary judgment. Accordingly, defendants' motion should be denied.
Ordered that the order is affirmed, with costs.
Footnote 1: While an appeal from anintermediate nonfinal order must be dismissed upon the entry of a final judgment (see Doherty v Schuyler Hills, Inc., 55AD3d 1174, 1175 [2008]; Matterof Ace Hardware Corp. v Little, 49 AD3d 1008, 1009 [2008]), the order appealed fromhere is a final order and, therefore, contrary to defendants' contention, the right of direct appealdoes not terminate upon the entry of said judgment. In any event, we deem plaintiffs' appealfrom Supreme Court's final order as also being taken from the subsequently-entered finaljudgment as it does not materially differ from the final order (see CPLR 5520 [c]; Matter of General Motors Corp.[Sheikh], 41 AD3d 993, 994 [2007]).
Footnote 2: She testified that the speed limiton the road was either 30 or 35 miles per hour and that Bright was going around 50 miles perhour prior to impact.
Footnote 3: The passenger was asked, "Atany moment prior to the accident did you see the bus cross over the center of [the] [r]oad?" towhich he answered, "I don't know" (emphasis added).
Footnote 4: When asked (again) if "the buswas within the westbound lane of that portion of the roadway at the time of the accident" thepassenger answered, "She wasn't totally in her lane . . . I'd say in our lane, I'm notsaying a whole car length in our lane but . . . [a]pproximately maybe a foot."
Footnote 5: When asked "[i]f the bus wasover the middle of the roadway, how much of the bus was over the middle of the roadway" thepassenger answered, "I just said approximately a foot, I don't know" (emphasis added).