| Harrison v Bailey |
| 2010 NY Slip Op 09221 [79 AD3d 811] |
| December 14, 2010 |
| Appellate Division, Second Department |
| Christopher Harrison, Respondent, v Maurice Andre Bailey etal., Appellants. |
—[*1] Douglas A. Emanuel, Brooklyn, N.Y. (Richard G. Monaco of counsel), for respondent.
In an action to recover damages for personal injuries, the defendants appeal, as limited by theirbrief, from so much of (1) an order of the Supreme Court, Kings County (Partnow, J.), dated February10, 2009, as granted the plaintiff's motion for summary judgment on the issue of liability, (2) an order ofthe same court (Jackson, J.), dated November 10, 2009, as denied that branch of their motion whichwas to vacate an order of the same court dated August 1, 2008, precluding the defendant MauriceAndre Bailey from testifying at trial if he failed to appear for a deposition on or before October 3,2008, and (3) an order of the same court (Partnow, J.), dated January 26, 2010, as denied that branchof their motion which was for leave to renew their opposition to the plaintiff's motion for summaryjudgment on the issue of liability.
Ordered that the order dated February 10, 2009, is reversed insofar as appealed from, on the law,without costs or disbursements, and the plaintiff's motion for summary judgment on the issue of liabilityis denied; and it is further,
Ordered that the order dated November 10, 2009, is affirmed insofar as appealed from, withoutcosts or disbursements; and it is further,
Ordered that the appeal from the order dated January 26, 2010, is dismissed, without costs ordisbursements, as academic, in light of our determination on the appeal from the order dated February10, 2009.
On December 8, 2006, the plaintiff and the defendant Maurice Andre Bailey were involved in atwo-vehicle collision at the intersection of 5th Avenue and 59th Street in Manhattan. At the time of thecollision, Bailey was employed by the defendant Atlantic Express Coachways, Inc. (hereinafterAtlantic), and was operating a bus within the scope of his employment. On or about March 30, 2007,Bailey's employment with Atlantic ended.
The plaintiff commenced this action on February 28, 2007. Thereafter, Bailey interposed a verifiedanswer and all parties were directed by a preliminary conference order to complete depositions byMarch 25, 2008. By order dated August 1, 2008, following Bailey's failure [*2]to appear for his deposition, the Supreme Court granted the plaintiff'smotion to preclude Bailey from tesifying at trial if he failed to appear for deposition on or beforeOctober 3, 2008. During the summer and fall of 2008 defense counsel attempted, through aninvestigator and a subpoena, to contact Bailey and obtain his cooperation and attendance for adeposition. However, as Bailey later admitted, he had instructed persons that had been contacted bythe investigator to discard the various papers that were to be delivered to him, based on his belief thatdefense counsel was "handling this matter without the need of [his] cooperation."
After the October 3, 2008, deposition deadline had passed without Bailey appearing fordeposition, the plaintiff moved for summary judgment on the issue of liability. Bailey and Atlanticopposed the motion by submitting a company accident report. The plaintiff challenged the admissibilityof the report on the ground that it constituted inadmissible hearsay. On February 10, 2009, theSupreme Court, inter alia, granted the plaintiff's motion for summary judgment on the issue of liability asagainst Bailey and Atlantic, finding that the opposition papers submitted by Bailey and Atlantic failed toraise a triable issue of fact.
The defendants moved to vacate the order dated August 1, 2008. The moving papers recountedthe efforts of defense counsel to locate Bailey and Bailey's reasons for rebuffing those efforts.Moreover, the defendants submitted Bailey's affidavit containing an alleged defense to the action on themerits. In an order dated November 10, 2009, the Supreme Court denied the defendants' motion in itsentirety.
The defendants then moved for leave to renew their opposition to the plaintiff's motion for summaryjudgment arguing, inter alia, that Bailey's affidavit addressing the merits of the action constituted newevidence. The Supreme Court denied the motion in an order dated January 26, 2010.
The defendants appeal from the orders dated February 10, 2009, November 10, 2009, andJanuary 26, 2010.
The Supreme Court erred in granting the plaintiff's motion for summary judgment on the issue ofliability. While the plaintiff established his prima facie entitlement to summary judgment on the issue ofliability (see generally Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 852 [1985];Zuckerman v City of New York, 49 NY2d 557, 562 [1980]), the defendants' profferedaccident report, which contained a statement from Bailey that the plaintiff had crossed into Bailey's lane,causing the accident, raised a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d320, 324 [1986]; Bradley v IBEX Constr.,LLC, 54 AD3d 626, 627 [2008]). Contrary to the plaintiff's contention, the accident reportwas admissible evidence under the business record exception to the rule against hearsay. While anunsworn accident report, by itself, does not constitute evidence in admissible form sufficient to defeat amotion for summary judgment (see Morgan vHachmann, 9 AD3d 400, 401 [2004]; Hegy v Coller, 262 AD2d 606 [1999]), itmay be admissible in evidence if it qualifies as a business record (see Bradley v IBEX Constr.,LLC, 54 AD3d at 627; cf. Bendik v Dybowski, 227 AD2d 228, 229 [1996]). Here, theaffidavit of Atlantic's Safety Manager established the elements required for the admissibility of theaccident report as a business record pursuant to CPLR 4518 (a), namely, that the report (1) wasrequired of Bailey as a condition of his employment, (2) was made at or about the time of the accident,and (3) was maintained by Atlantic in the regular course of its business (see Bradley v IBEXConstr., LLC, 54 AD3d at 627; Galanek v New York City Tr. Auth., 53 AD2d 586[1976]; Bishin v New York Cent. R.R. Co., 20 AD2d 921 [1964]). Once admissible, anychallenges to the report extend only to the weight it will be given (see CPLR 4518 [a]). Here,the order dated August 1, 2008, only precluded Bailey from "testifying at the trial of the action." Suchlanguage cannot be read as precluding Bailey from opposing a motion for summary judgment throughthe submission of documentary evidence. Moreover, the language of the order of preclusion does notprohibit Atlantic, as Bailey's former employer, from proffering any form of evidence at any time in theaction. Indeed, the nature and degree of the penalty to be imposed pursuant to CPLR 3126 is a matterwithin the discretion of the court (see Jaffe v Hubbard, 299 AD2d 395, 396 [2002]). Had theSupreme Court intended to preclude Bailey from proffering any forms of evidence, as the plaintiffmaintains, it could have done so in the order dated August 1, 2008, by specifically precluding all formsof evidence or by striking Bailey's answer outright under CPLR 3126 (3).
The Supreme Court properly denied the defendants' motion to vacate the order dated [*3]August 1, 2008. Bailey's affidavit established that he wilfully andrepeatedly sought to avoid appearing for a deposition by instructing other persons to discard legalpapers and by not timely contacting or cooperating with his counsel (see Abdul v Hirschfield, 71 AD3d 707[2010]).
The parties' remaining contentions are without merit or have been rendered academic in light of ourdetermination. Prudenti, P.J., Dillon, Balkin and Chambers, JJ., concur.