Defendants move for summary judgment dismissing the Complaint. Defendants are the owner and operator, respectively, of a livery vehicle which struck the eleven year old plaintiff as he was crossing East 123rd Street, in Manhattan, on November 11, 2005. Movants contend that plaintiff cannot prove any negligence on the part of defendants, basing such contention on the deposition testimony of both plaintiff and defendant driver (Oscar Muniz).

Movants point out that the infant plaintiff (whose deposition was conducted shortly before his thirteenth birthday) testified that he was running across the street at the time of the accident, intending to reach his cousin. He also testified that when he looked to the right for the first time, he saw defendants' vehicle and it was only five or ten inches from him. He was struck when he was in the middle of the street. He had entered the roadway from between parked cars. The police report is in accord with this account.

Defendant driver testified that he had entered the street at normal speed (20-25 m.p.h.) but slowed down because there were children crossing, at one point stopping his car completely. He testified that he was proceeding at five miles per hour, but did not see plaintiff, until plaintiff came into contact with the left front of his car, or one second earlier (see EBT, pp. 25-26 & 30). He was driving with his foot on the brake, looking to the left (from where plaintiff emerged) because of the activities of youngsters in that street a few seconds earlier, but he still did not see plaintiff in time.

Based on the above testimony, movants argue that there was nothing defendant could have done to avoid hitting the pedestrian, and that no negligence on the part of defendant can be proven. Movants have made out a prima facie entitlement to summary judgment, based on the foregoing.

In opposition to the motion, plaintiff offers mostly boiler plate language concerning requirements for the granting of summary judgment, but then appends the affidavit of eyewitness Christopher Soto ("Soto"). The affidavit asserts that the defendants' vehicle was traveling at a "very high rate of speed" when it entered the block. Thereafter, the vehicle operator attempted to "quickly throw his car to the left" to avoid a dip in the road, coming within inches of the parked cars. At that point, the vehicle struck plaintiff, "who had emerged" from between two parked cars. The affiant offers his opinion that it was the negligence of the vehicle operator which caused the accident. [*2]

In reply, movants note that Soto is a minor. In fact, Soto was sixteen years of age when he signed the affidavit. Movants' reliance on this argument is curious, in view of the emphasis placed by their application on the testimony of the twelve year old plaintiff. More consequentially, movants note that Soto has already made a prior statement which offers a version of the accident consistent with that in the police report, and at variance with the account in his current affidavit.

In Soto's earlier statement, taken by defendants' investigators with the consent, and in the presence, of Soto's uncle (and with the consent of Soto's mother), Soto states that plaintiff was his friend, that Soto saw plaintiff from across the street, that plaintiff was standing between two parked cars intending to run out from his "hiding place" and grab Soto. Soto further observed the vehicle passing him in the street, and, looking over his shoulder, he saw plaintiff run out from between two SUV's and get hit. Soto further stated that plaintiff did not look to see if cars were coming when he ran out, but looked straight across the street. Soto had been a friend of plaintiff for three years, and often played with him. Soto stated that plaintiff was wearing dark clothes. (It should be noted that, according to all accounts, the accident occurred at a time which would have been, on November 11, after nightfall).

Plaintiff's counsel, in offering the current affidavit of Soto, somewhat misleadingly refers to it only as an affidavit produced in response to the Preliminary Conference Order, as if the document had been in the case file for some time. In fact, the affidavit is dated April 16, 2007, seven days after the date of service of the summary judgment motion. Soto's affidavit in support of plaintiff's claim is therefore almost certainly a document prepared in response to the summary judgment motion, and for the evident purpose of defeating such motion.

Courts have long held that affidavits transparently tailored to avoid the consequences of earlier testimony, when offered in opposition to a summary judgment motion, are insufficient to raise triable issues of fact. Phillips v. Bronx Lebanon Hospital, 268 AD2d 318.Where such affidavits contradict the earlier testimony of the same plaintiff, they serve to create only a "feigned" issue of fact. Burkowski v. Structure Tone, 40 AD3d 378; Telfeyan v. City of New York, 40 AD3d 372.

The decisions granting summary judgment in such situations almost invariably relate to a sworn statement given by the plaintiff himself to avoid a summary judgment which would be based on his own earlier testimony. Here, the sworn statement was provided by an admitted friend of plaintiff, rather than by plaintiff himself. Nevertheless, the rationale behind the above-cited decisions applies here as well. The Soto statement, tailored to avoid the consequences of a summary judgment motion based on plaintiff's own words, executed by plaintiff's friend, and containing a version of the accident completely at variance with both plaintiff's earlier testimony and the account of Soto himself, can only be seen as putting forth a classically "feigned" issue of fact.

The contradiction between Soto's present affidavit and his earlier statement is evident. The actual words of the two accounts do not have to be in diametric opposition. See Amaya v. Denihan, 30 AD3d 327 (in which plaintiff originally alleged a wet surface, and only later spoke of a structural defect). Here, there was absolutely no mention of the alleged high speed of the vehicle by plaintiff, Soto, or any other person, until the summary judgment motion was made. Because high speed is a factor which would invariably and without doubt enter into any account of an accident, its earlier absence is no different, for these purposes, from a situation in which plaintiff or Soto would have said earlier that the vehicle was proceeding at average speed. Similarly, there was no account earlier, by plaintiff, Soto, or anyone else, of defendant veering to the right. This, too, is so striking a [*3]feature of the event that its absence from the earlier accounts is akin to its denial, rendering the newly minted affidavit a clearly "contradictory" story.

The Court therefore concludes that the opposition to the motion, in relying wholly on the feigned issue of fact created by the belatedly tailored Soto affidavit, has failed entirely to overcome movants' prima facie showing of entitlement to summary judgment.

Even if the above were not sufficient to support the granting of the motion, there remains another critical factor which compels dismissal of the action. Assuming the account by Soto in his affidavit to be true, plaintiff has still failed to make out a cause of action for negligence against defendants. It is not negligent to move to the right of a roadway in order to avoid a pothole. There is no claim by anyone that defendant scratched, nicked or otherwise contacted any car on the right side of the road. Rather, defendant remained, according to Soto and plaintiff, in the section of the roadway reserved for automotive traffic.

In coming into contact with the infant plaintiff, defendant's auto clearly did not reach into the space between two parked SUV's to impact the victim. Rather, plaintiff had to be already in the roadway area reserved for vehicles. According to both plaintiff himself, and Soto, and not contradicted by Soto's current statement, plaintiff was running at the time. It must be recalled that plaintiff does not claim to have been squeezed between defendants' vehicle and a parked car, or to have been sideswiped by defendants' car. Rather, he was struck by the front fender (albeit the left side thereof). Finally, according to plaintiff's own words, he was in the middle of the street at the time, not on the side.

The only conclusion to be drawn from the above was that plaintiff had run into the roadway, where he should not have been, and had been struck by a vehicle, which was traveling in space reserved for its use. In circumstances like these, courts have repeatedly found no negligence. Wolf v. We Transport, Inc., 274 AD2d 514; Sheppeard v. Murci , 306 AD2d 268; Miller v. Sisters of the Order of Saint Dominic, 262 AD2d 373.

Similarly, in addition to the fact that Soto's allegations about the high speed of defendants ' vehicle contradicts his earlier description of events, there is further reason not to accept his "speeding" story. He does not quantify the speed or assert that it was greater than the speed limit. As noted in the Wolf and Sheppeard decisions, cited supra, such an account as to speed is wholly subjective, unquantifiable and conclusory.

It does not need belaboring that Soto's gratuitous opinion as to defendants' negligence is without probative value. Soto is not a driver and is entirely unqualified to offer opinion evidence. In fact, the entire Soto affidavit is so phrased as to be transparently in the "voice" of counsel for plaintiff, and not the personal account of the young witness. While it may be argued that Soto's previous statement was influenced by defendants' investigators, who elicited it, such argument is deflected by the obvious involvement of Soto's uncle, who would not logically have countenanced the twisting of his nephew's words, and by the fact that no discernable motive can be seen for Soto to have earlier laid blame on his friend for causing the accident.

By reason of the foregoing, the Soto affidavit fails to raise an issue of fact as to defendants' negligence, both because it is tainted as presenting a belated and feigned factual dispute, and because, even if such defect were discounted, its claim as to the veering of the vehicle does not in any way allege a negligent act, given all the other circumstances here, and its claim as to the high speed of the vehicle is subjective, conclusory, unquantifiable, and therefore without probative value.

The motion for summary judgment is therefore granted in all respects and plaintiff's claims [*4]against defendants are dismissed with prejudice.

This constitutes the Decision and Order of the Court.

Dated: ____________________________________

Mark Friedlander, J.S.C.