The following papers numbered 1 to 19 were read on this motion by plaintiff, EMIL KABIR, for an order pursuant to CPLR 3212(a) granting plaintiff partial summary judgment on the issue of liability against defendants SCUFFY'S COLLISION and ERIC R, ZUZIO and setting this matter down for a trial on damages and for an order striking the defendants' answer for failure to comply with discovery; and the cross-motion of the defendants for an order dismissing the plaintiff's complaint pursuant to CPLR 3211(a)(5) on the ground that the plaintiff executed a general release or in the alternative dismissing the plaintiff's complaint pursuant to CPLR 3126 for willfully failing to comply with defendants' notices for discovery and inspection:

PapersNumbered

Plaintiff's Notice of Motion-Affidavits-Exhibits.......1 - 6

Defendants' Cross-Motion...............................7 - 11

Affirmation in Opposition to Cross-Motion.............12 - 16

Defendants' Reply Affirmation.........................17 - 19 [*2]

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In this negligence action, the plaintiff, Emil Kabir, seeks to recover damages for personal injuries he sustained as a result of a motor vehicle accident that occurred on July 30, 2008 at approximately 11:30 p.m. in front of 6067 55th Street, Queens County, New York. At that time the plaintiff was a restrained front seat passenger in a tow truck owned by defendant Scuffy's Collision and operated by defendant, Eric R. Zuzio. The accident occurred when the operator of the tow truck lost control of the vehicle and struck four cars which were parked along the curb on 55th Street. The plaintiff, who was seated in the front passenger seat, hit the windshield with his face and sustained serious injuries to his mouth, teeth and jaw.

The plaintiff commenced this action by filing a summons and complaint on May 25, 2011. Defendants served an answer dated June 28, 2011. In the answer defendant admitted that Scuffy's Collision, Inc. owned the tow truck involved in the accident and that Eric R. Zuzio, an employee, operated the vehicle with the permission and consent of the owner. However, the defendants denied the allegation that plaintiff was a passenger in the tow truck. Plaintiff filed a note of issue on August 24, 2012 and an amended note of issue on September 14, 2012. The matter is now on the calendar of the Trial Scheduling Part on April 17, 2013.

Plaintiffs Motion for Partial Summary Judgment on the Issue of Liability

Plaintiff moves for an order, pursuant to CPLR 3212(a), granting partial summary judgment on the issue of liability against defendants Scuffy's Collision and Eric R. Zuzio and setting the matter down for a trial on damages. Defendants cross-move for an order pursuant to CPLR 321(a)(5) dismissing the plaintiff's complaint on the ground that the plaintiff executed a general release in consideration of certain payments alleged to have been made to him by the defendants.

In support of his motion, plaintiff submits an affirmation from counsel, Michael D. Sharp, Esq., a copy of the defendant's answer; a copy of the examination before trial of plaintiff, Emil Kabir; a copy of the police accident report; a copy of the EMS records; a copy of the the purported release; an affidavit from the plaintiff; two separate letters from witnesses to the accident; a letter from a dentist setting forth the plaintiff's injuries; and a copy of the hospital record for plaintiff's admission at Mary Immaculate Hospital. [*3]

The accident description contained in the police accident report states as follows:

"At t/p/o vehicle No. 5 (defendant) traveling southbound on 55th Street, hit vehicle Nos. 1, 2, 3, and 4 coming to a stop. Vehicles 1, 2, 3, and 4 were all legally parked. There were no injuries. Vehicle No. 5 (defendant), did admit to losing control of the vehicle hitting vehicle Nos. 1, 2, 3 and 4."

It should be noted that the plaintiff's name is not mentioned in the police report as being a passenger in the defendant's tow truck as the plaintiff left the scene prior to the arrival of the police. However, the NYC Fire Department report indicates that EMS responded to the accident and treated the plaintiff at the scene.

In his examination before trial taken on April 17, 2012, the plaintiff, age 25, testified that prior to the accident he was social friends with defendant Zuzio who was employed by a motor vehicle body shop known as Pro Bodies. On July 30, 2008, at approximately 11:30 p.m. plaintiff was in Flushing, walking to a bus stop, when Mr. Zuzio, who was driving a company tow truck, passed plaintiff in the street and asked him if he wanted a ride home. They were proceeding on 55th Street, just passed Nurge Avenue at a rate of 30 or 40 miles per hour when Mr. Zuzio lost control of his vehicle and the tow truck hit four cars which were parked along the right curb.

Plaintiff stated that as a result of the first impact his face hit the windshield causing injuries to his teeth and jaw. The impact caused the windshield to crack. He stated that he lost consciousness and has no recollection of the subsequent impacts. Plaintiff recalled that people from the neighborhood came down to the scene and helped him out of the truck. He stated that Eric Chubirka and Deanna Chubirka, the owners of Scuffy's, came to the scene as did Zuzio's mother. Plaintiff testified that Eric Chubirka told him at the scene that there was no insurance, that he did not need to go in the ambulance that responded to the accident and that the owners would take care of everything. He took that to mean that Eric Chubirka would take care of his injuries and dental work. Eric Zuzio's mother drove plaintiff from the scene to Mary Immaculate Hospital. The plaintiff testified that he was not able to speak at the hospital and he believes someone else told the hospital personnel how the accident happened. The emergency room record reflects that hospital personnel were told that the plaintiff sustained his injuries as a result of an assault in which he was punched and [*4]kicked in the face. At the hospital he learned that eight of his teeth had been knocked out from the impact and his jaw was fractured. He states that he also injured his neck.

Approximately one month after he was discharged he was contacted by Eric Chubirka and given the name of dentist Dr. Maggie Garjarian. Chubirka told plaintiff again that he would take care of the bill. Plaintiff testified that the bill for Mary Immaculate has not been paid. He was shown a copy of the purported release that he was given by Chubirka and stated that it was not his signature on the document. He stated that Chubirka never discussed paying for pain and suffering and never discussed total compensation for his dental work. He stated that he did not agree to accept $4,000 to settle the matter and he has not received any money from Pro Bodies.

In his affidavit, dated September 6, 2012, Mr. Kabir states that he was a passenger in the vehicle owned by Scuffy's Towing and operated by Zuzio when Zuzio lost control of the vehicle striking four parked cars. He stated that his face went through the windshield and all of his front bottom teeth broke and fell out of his mouth. He states that the owner of the vehicle advised him that there was no insurance available on the vehicle due to the fact that no passengers were supposed to be in the vehicle. "The owner assured me he would take care of all of my medical bills and my teeth." He states that either Zuzio or his mother told the hospital personnel that he was punched and kicked in the face, which was not true. He states that he has not yet received full treatmenrt and he has been living for the past four years with no teeth and TMJ. He states that the did not bring the suit until 2011 as the owner had not compensated him or paid any of his bills. In addition, plaintiff states that because the owner told him not to file a claim, he has not received no fault benefits.

Plaintiff also submits a letter from a witness at the scene who states that she observed a person sitting in the passenger seat who was injured and holding his mouth. She also observed EMT attending to an injured passenger. Another witness observed blood on the passenger side of the dashboard. Plaintiff also submits a letter from Dr. Mondshine, a dentist, stating that his dental treatment will cost close to $40,000.

Plaintiff's counsel contends that the admissible evidence demonstrates that plaintiff was a passenger in the tow truck owned by defendant Scuffy's Collision and operated by its employee Eric Zuzio when the tow truck left the roadway striking several lawfully parked vehicles and causing serious and permanent physical injuries to the plaintiff Emil Kabir. Counsel [*5]asserts that the defendant was negligent in that his vehicle left the road without explanation due to defendant's failure to use reasonable care.

In opposition to the motion, defendants' counsel, Susan M. Ulrich, Esq. does not submit an affidavit from defendant Zuzio and does not dispute the version of the accident as testified to by the plaintiff at his examination before trial and in his affidavit in support of the motion. However, counsel asserts that the plaintiff is not entitled to summary judgment and that the complaint should be dismissed pursuant to CPLR 3211(a)(5) on the ground that the plaintiff executed a general release and accepted $4,000.00 from Scuffy's as compensation for his injuries. Counsel also contends that the plaintiff's complaint should be dismissed based upon plaintiff's willful failure to supply responses to defendants' demands for discovery and inspection.

In response the plaintiff annexes authorizations and a response to the notice of discovery and inspection to the affirmation in opposition.

The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. If the proponent succeeds, the burden shifts to the party opposing the motion to show the existence of material issues of fact by providing evidentiary proof in admissible form in support of his position (see Zuckerman v. City of New York, 49 NY2d 557[1980]).

"An innocent passenger . . . who, in support of his or her motion for summary judgment, submits evidence that the accident resulted from the driver losing control of the vehicle, shifts the burden to the driver to come forward with an exculpatory explanation" (Siegel v Terrusa, 222 AD2d 428 [2d Dept. 1995] cited by Pandey v. Parikh, 57 AD3d 634 [2d Dept. 2008]; also see Felberbaum v Weinberger, 40 AD3d 808 [2d Dept. 2007]; Dudley v Ford Credit Titling Trust, 307 AD2d 911 [2d Dept. 2003]; MacIntosh v August Ambulette Serv., 271 AD2d 661 [2d Dept. 2000]).

Here, the plaintiff testified at his examination before trial and supplied an affidavit stating that he observed the plaintiff lose control of the vehicle and strike four cars which were parked at the curb on 55th Street. His statement is corroborated by an admission made by defendant Zuzio to a police officer who responded to the scene. The police report states that the defendant admitted that he lost control of his vehicle and struck the parked cars. Based upon plaintiff's testimony and the [*6]evidence submitted by the plaintiff, this Court finds that the plaintiff has demonstrated prima facie entitlement to summary judgment on the issue of liability as the evidence showed that he was a passenger in a vehicle and was injured when the defendant driver lost control of his vehicle impacting other vehicles (see Felberbaum v Weinberger, 40 AD3d 808 [2d Dept 2007][summary judgment granted to plaintiff who was a passenger in a vehicle which lost control, and flipped over a guardrail]; Dudley v Ford Credit Titling Trust, 307 AD2d 911 [2003][plaintiff entitled to summary judgment in a one car accident in which the defendant's vehicle left the road and struck a tree]; MacIntosh v August Ambulette Serv., 271 AD2d 661 [2d Dept.2000][summary judgment granted to plaintiff passenger when an ambulance slid off the road and hit a tree and fire hydrant]). Thus, the plaintiff demonstrated, prima facie, that the defendant's negligence was the sole proximate cause of the accident, thereby shifting the burden to the defendant to come forward with an exculpatory explanation for the collision

This Court finds that the defendant, Emil Kabir, who admitted to the police officer at the scene that he lost control of his tow truck immediately prior to the accident and struck the four parked vehicles, and who did not submit an affidavit in opposition to the motion, failed to provide any admissible evidence as to a non-negligent explanation for the accident sufficient to raise a question of fact. (see Soto-Maroquin v Mellet et al, 63 AD3d 449 [1st Dept. 2009]; Gomez v Sammy's Transp., Inc., 19 AD3d 544 [2d Dept. 2005][the defendants failed to raise a triable issue of fact by only interposing an affirmation of their attorney who lacked knowledge of the facts]).

Plaintiff also moves to strike the defendants' answer for failing to appear for a scheduled examination before trial as ordered by Justice Ritholtz in a compliance order dated June 4, 2012. In view of the award of summary judgment to the plaintiff on liability, that branch of the plaintiff's motion to strike the defendants' answer for failing to appear for a deposition is denied as academic.

Cross-Motion by Defendants to Dismiss the Complaint

Defendants cross-move to dismiss the complaint pursuant to CPLR 3511(a)(5) on the ground that the plaintiff signed a release indicating that he accepted $4,000 cash settlement from Eric Zuzio for the subject incident with $6,000 to be paid to Dr. Maggie Garjarian for dental expenses. Defendant submits a copy of the purported release dated May 25, 2010, which contains no title [*7]and states as follows:

"I Eric Zuzio is taking full responsibility for the replacement of 8 Porcelan (sic) permanent teeth to be put in by Dr. Maggie Garjarian, in the amount of $6,000.00 that will be paid by me Eric Zuzio. And also in regards to this, I will compinsate (sic) Emil Kabir $4,000,00 in a cash settlement for his trouble." The release is not notarized but contains signatures of the plaintiff and defendant Zuzio. The release contains hand written notations purporting to show that payments amounting to $4,000.00 were made by Pro Bodies.

Defendant also submits an affidavit from Eric Chubirka stating that he is the owner of Scuffy's Collision doing business as Pro Bodies Collision. He states that he owned the vehicle operated by Zuzio on the date of the accident. He states that after the accident, he told Emir Kabil that Scuffy's would compensate him a total of $4,000.00 for his personal injuries sustained in the accident and $6,000 for his dental bills to be paid directly to Dr. Maggie Garjarian. He states that "it was discussed and agreed to by Emil Kabir, prior to signing the release that the $4,000.00 cash compensation would be in lieu of a lawsuit, thus the May 15, 2010 document was intended to serve as a general release." He states that the release was signed on May 25, 2012 at the office of Pro Bodies Collision in the presence of plaintiff, Zuzio, himself, and his wife Deana Chubirka. He states that Scuffy's paid $4,000.00 to Emil in installments on the dates set forth on the release. Chubirka states that Scuffys did not pay Dr. Garjarian because he believed that she was paid by insurance coverage. He states that the document was intended as a general release and therefore the action should be dismissed.

Defendants' counsel contends that the action must be dismissed based upon the release signed by the plaintiff. Counsel contends based upon the affidavit of Chubirka that the plaintiff signed the release and accepted payments to pay off his dental work and to compensate him for his injuries. Counsel claims, based upon the particular language of the release that there was a conscious and deliberate effort on the part of the parties to discharge liability from all consequences of the accident and to bar any future clams for previously unknown injuries.

In opposition, plaintiff contends that the defendants participated in a pattern of misrepresentation by telling the plaintiff there was no insurance, telling the hospital that he was a victim of an assault, and having the plaintiff forego seeking no fault benefits by allegedly entering into an agreement with the plaintiff to pay his expenses. After waiting almost [*8]three years, during which time the defendant failed to compensate the plaintiff, the plaintiff commenced the instant action. Counsel asserts that the release was not fairly and knowingly entered into by the plaintiff. In addition, at his examination before trial, the plaintiff testified that he did not sign the release and did not receive any payments from any one on account of his injuries or for dental bills.

The meaning and scope of a release must be determined within the context of the controversy being settled (see Zichron Acheinu Levy, Inc. v Ilowitz, 31 AD3d 756 [2d Dept. 2006]) and a general release cannot be construed to cover matters which the parties did not desire or intend to dispose of (see Rotondi v Drewes, 31 AD3d 734 [2d Dept. 2006]). Here, there are several questions of fact concerning validity of the document purporting to be a release as it does not use the term "release", is not clear as to whether it was intended to operate as a general release or a limited release. Further, the document does not reference the accident in question and is not signed by an owner or officer of defendant Scuffy's. In addition, there are questions of fact as to whether plaintiff signed the document and whether any payments were made as promised by the defendants (see Spears v Spears Fence, Inc., 60AD3d 752 [2d Dept. 2009][when a term or clause in a release is ambiguous and the determination of the parties' intent depends upon the credibility of extrinsic evidence or a choice among inferences to be drawn from extrinsic evidence, then the issue is one of fact]; NFL Enters. LLC v Comcast Cable Communications, LLC, 51 AD3d 52 [1st Dept. 2008]). Moreover, the allegations of fraudulent misrepresentation are sufficient to support a possible finding that the release was signed by the plaintiff under circumstances which indicate unfairness (Farber v Breslin, 47 AD3d 873[2d Dept. 2008], quoting Gibli v Kadosh, 279 AD2d 35 [1st Dept. 2000]; Storman v Storman, 90 AD3d 895[2d Dept. 2012]).

Accordingly, as the plaintiff raised factual issues regarding the validity and scope of the purported release based on the context and circumstances of its execution, the defendant's motion to dismiss the plaintiff's complaint pursuant to CPLR 3211(a)(5)is denied.

Further, as the evidence in the record demonstrates that the defendants failed to provide a non-negligent explanation for the collision, and based on the foregoing, it is hereby,

ORDERED, that the plaintiff's motion is granted, and the plaintiff, EMIL KABIR, shall have partial summary judgment on the issue of liability against the defendants SCUFFY'S COLLISION and [*9]ERIC R. ZUZIO and the Clerk of Court is authorized to enter judgment accordingly; and it is further,

ORDERED that the defendants' motion to compel discovery is denied as the plaintiff has submitted responses and authorizations as requested by the defendants, and it is further

ORDERED, that upon completion of discovery on the issue of damages, filing a note of issue, and compliance with all the rules of the Court, this action shall be placed on the trial calendar of the Court for a trial on damages.

Dated: March 19, 2013

Long Island City, NY

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ROBERT J. MCDONALDJ.S.C.