Georges Mata,
Plaintiff,
against
Road Masters Leasing Corp., LIBERTY MOTOR CARS
INC., DAYAN POURAD, MICHAEL C. NAPOLI and MICHAEL J. NAPOLI,
Defendants.
|
10116/2012
Robert J. McDonald, J.
This is an action for damages for personal injuries which were allegedly sustained by
the plaintiff, Georges Mata, in a two-vehicle accident which took place on July 1, 2011,
on the northbound lanes of Woodhaven Boulevard near the intersection with
Metropolitan Avenue in Rego Park, Queens County, New York. One vehicle was owned
by defendant, Michael J. Napoli and operated by defendant Michael C. Napoli and the
other vehicle was owned by Liberty Motor Cars, Inc., and Road Masters Leasing and was
operated by defendant, Dayan Pourad. Plaintiff, Georges Mata, was a passenger in the
Pourad vehicle.
Michael C. Napoli alleges that he was injured as a result of the accident and
commenced an action against Pourad, Liberty and Road Masters on December 9, 2011
under Index No. 27736/2011. In that action, Napoli alleged that he was driving in the far
right lane of northbound Woodhaven Boulevard, planning on making a right turn onto
Metropolitan Avenue. He claimed that as he approached the intersection, the vehicle
operated by Pourad suddenly, and without warning, cut in front of his car from the
middle lane to turn into a gas station on the corner. Defendant Pourad, age 16, possesed a
learner's permit and pursuant to VTL § 501(b)(i), in the City of New York was only
permitted to operate a vehicle in the presence of a licensed supervising parent, guardian
or one in loco parentis.
In the first action brought by Napoli, defendants Dayan Pourad and Road
Masters commenced a third-party action against the passenger, Mr. Mata, alleging that if
Pourad was culpable for causing the accident than Mata, as a licensed driver, was also
culpable for failing to properly supervise Pourad in the operation of the vehicle. It is
claimed that Mata owed a duty to use reasonable care as a supervisor and also owed a
duty of care to take necessary measures to prevent negligence on the part of the driver
with the learner's permit (citing Kuebler v Kuebler, 90 AD3d 1611 [4th Dept. 2011] [a
licensed driver supervising an unlicensed driver with a learner's permit owes a duty to
use reasonable care as an instructor, and he or she also owes a duty to take necessary
measures to prevent negligence on the part of the driver with the learner's permit] also
see Pierson v Dayton, 168 AD2d 173 [4th Dept. 1991]).
In the first action, plaintiff, Michael C. Napoli, moved for partial summary
judgment on the issue of liability against Pourad, Liberty Motor Cars and Road Masters
Leasing. By decision dated February 7, 2013, Justice Howard Lane granted partial
summary judgment to the plaintiff finding that defendant Pourad's negligence was the
sole proximate cause of the accident because "the accident clearly occurred when the
defendant, Dayan Pourad, made a turn across lanes for moving traffic by making a right
turn from the middle lane directly into the path of the Napoli vehicle. Pourad submitted
an affirmation in opposition to the motion stating that he was 16 years old at the time of
the accident and had a learner's permit requiring him to be supervised by a licensed adult.
Pourad stated that Mata agreed to be a supervising driver but he claimed that Mata was
distracted and failed to properly supervise him and that such failure contributed to the
collision. Justice Lane held that although the licensed driver is under a duty to use
general or reasonable care in the instruction or supervision of the learner-driver, the
negligence of the learner-driver is not imputable to the licensed driver(see Napoli v
Pourad, 2013 NY Slip Op 30380(U) citing Savone v Donges, 122 AD2d 34
[2d Dept. 1986]).
On October 9, 2013, following the decision of Justice Lane, the prior matter
of Napoli v Pourad, et al was settled pursuant to a stipulation of discontinuance
filed with the Court on December 12, 2013. In view of the settlement, the Pourad
defendants did not pursue the third-party action against Mr. Mata.
However, Mr. Mata, the passenger in the Pourad vehicle, alleges that he was
also injured in the accident. In order to recover damages for his injuries, Mr. Mata
commenced the instant action which was filed under Queens County Index No.
27736/2011. In his complaint, Mr. Mata asserts causes of action against both drivers, Mr.
Napoli and Mr. Pourad, alleging that he was an innocent passenger injured as a result of
the negligence of both Mr. Napoli and Mr. Pourad in the operation of their respective
vehicles. The plaintiff filed a Note of Issue on October 18, 2013, and the matter is
presently on the calendar in the Trial Scheduling Part for October 7, 2014.
Jozef K. Goscilo, Esq., counsel for Mr. Napoli, now moves for an order,
pursuant to CPLR 3212, granting summary judgment in favor of the Napoli defendants
and dismissing Mata's complaint as well as any cross-claims asserted by the
co-defendants. Defendant Napoli claims that he is entitled to summary judgment based
upon Justice Lane's prior decision and order in which he found that Mr. Pourad, the 16
year old driver, was 100 per cent liable for [*2]the
causation of the accident. Napoli asserts that based upon the doctrine of collateral
estoppel, the motion for summary judgment dismissing the complaint and all
cross-claims against Mr. Napoli must be granted. Counsel claims that although plaintiff,
Mr. Mata, was not a party to the prior action, he was served with the motion for summary
judgment, submitted papers in opposition and had a full and fair opportunity to
participate and defend the prior motion. Counsel argues that because Mr. Napoli, as a
plaintiff in the prior action, was absolved of any liability for the causation of the subject
accident that by virtue of collateral estoppel he should also be held to be free of liability
as a defendant in the instant action involving the same accident.
Gregory C. McMahon, Esq., counsel for plaintiff Mata in the instant action,
cross-moves for an order dismissing the defendants' affirmative defense of culpable
conduct against Mr. Mata and granting partial summary judgment on the issue of liability
in favor of Mr. Mata on the ground that he was an innocent passenger.
Mr. Mata, age 40, a native of France, testified at a deposition on June 27,
2013 through the use of a French interpreter. He stated that he recently traveled to the
United States to have neck surgery for injuries resulting from the accident and to sit for
the deposition. The surgery to his cervical spine took place on June 18, 2013, nine days
prior to the deposition date. He stated that he possesses a French driver's license. He
stated that on the date of the accident he was visiting a friend who worked at Exotic Cars
which was situated next to Road Masters. He also knew the manager at Road Masters
and the manager's son Dayan Pourad who he knew as "Moses." He could not converse
with Moses in English. On the date of the accident, Dayan Pourad's father asked Mata to
accompany Dayan in a car. He testified that the father did not tell him that Dayan only
possessed a learner's permit and required supervision. Mr. Mata testified that although he
accompanied Dayan in the car because the father asked him to, he had no idea of the
reason why he was asked. He stated that he did not know the driver only had a learner's
permit. He sat in the front passenger seat. He had no conversation with the driver. He
testified that he did not give him any instruction but advised him, in a broken English, to
go slower but the driver did not pay attention. He stated that the other vehicle (operated
by Napoli) struck their vehicle and plaintiff injured his right side, right shoulder, head,
right hip and right knee. He was not aware of laws that require supervision of new
drivers in the United States. He testified that when he entered the vehicle with Pourad
[*3]he had no idea where he was going. The driver did
not speak French or Spanish. He only got in the car because he was invited to.
Mata does not oppose Napoli's motion for summary judgment on the ground
of collateral estoppel. However, Mata claims that he is entitled to partial summary
judgment against Pourad because Pourad was previously found to be liable for causing
the accident by Justice Lane. Mata also claims that Pourad was also negligent per se
because he operated the vehicle in violation of VTL § 501(5)(b)(i) which requires
an operator with a learner's permit, who is operating his vehicle in the City of New York,
to be accompanied by a parent, guardian or one in loco parentis. Counsel claims that Mr.
Mata was neither plaintiff's parent, guardian, nor one acting in loco parentis. Mata also
claims that as a passenger he is free from comparative negligence.
Dayan Pourad, in opposition to Mata's cross-motion, submitted an affidavit
claiming that Mata agreed to supervise him in taking the vehicle to a service station. He
claims that Mata was comparatively negligent in failing to assist him or supervise his
driving in any manner. He states that he believes that Mata was distracted and failed to
advise him in the proper method of operating the vehicle which he states contributed to
the collision. However, Mata seeks to strike the defendant's affirmative defense of
culpable conduct as Mata, who was not a parent, was incapable by statute of providing
supervision to Pourad and there is no other proof in the record of active negligence on
the part of Mata. Counsel claims that although a licensed driver supervising a learner
may be held liable if he fails to use reasonable care in the course of his supervision, Mr.
Mata was not capable under VTL § 501(5)(b)(i) of supervising Mr. Pourad as he
was not a parent, guardian or person in loco parentis. In addition the plaintiff moves to
strike Pourad's answer for failure to appear for a deposition despite having been ordered
to do so in a prior court order.
The Pourad defendants, by counsel Patricia Hart Nessler, Esq. also
cross-move for an order granting summary judgment in their favor, dismissing the
plaintiff's complaint on the ground that Mata consented to act as a supervising driver on
behalf of Dayan Pourad and as such Mata assumed the risk of becoming a passenger in a
vehicle operated by a novice driver who had only a learner's permit. In this regard,
counsel asserts that based upon Aloisio v Nelson, 27 Misc 2d 343 [NY Sup. Ct.
1961), a supervising driver of a vehicle operated by one with a learner's permit assumes
the risk of the learner's inexperience and cannot recover damages for injuries caused
thereby. Also citing Yetemian
[*4]v Padawatti Vega, 18 Misc 3d 808
[2007][assumption of the risk applies not only to instructors but to any passenger who
enters the car of a driver who they know is unlicensed]). In the alternative, Pourad claims
that the plaintiff was negligent and that his negligence was the proximate cause of the
accident in that he failed to perform any supervisory function in the vehicle and his
failure to supervise was the sole proximate cause of the accident. In this regard plaintiff
attached the affidavit of Farzin Pourad, dated April 12, 2012, stating that he is the
manager of Liberty Motor Cars, Inc. and a principal of Road Masters Leasing Corp. He
states that his son is Dayan Pourad, the operator of the vehicle involved in the subject
accident. He states that at the time of the collision, his son was working for Road Masters
Leasing Corp. and was 16 years of age. On the date of the accident his son had a learner's
permit which required that he be supervised by a licensed adult. He states that:
"I requested that Georges Mata, who advised me that he had a valid New
York State driver's license, accompany my son to bring a vehicle owned by Road Masters
Leasing to a service station. Mata agreed to supervise my son in the vehicle....Mata did
not assist my son in any manner whatsoever. He did not take any action to supervise my
son in any manner whatsoever. I believe he was distracted and failed to advise my son in
the proper method of operating the vehicle. I believe this failure to properly supervise my
son contributed to the collision."
Defendant claims that Mata's deposition testimony that he was never asked
to supervise and did not know why he went in the vehicle is not credible because he
testified that he routinely conversed prior to the accident in Spanish and broken English.
Counsel also claims that the fact that Mata had a valid foreign driver license gave him the
right to drive in New York pursuant to VTL §§ 509(10) and 509(5)(b)(i).
Counsel also claims that Mata stood in loco parentis as he had a prior relationship with
defendants and because he was a trusted friend with whom defendants developed a
trusted relationship. Counsel claims that as such there is a question of fact as to whether
Mata was comparatively negligent in that he allegedly breached his duty to use
reasonable care as a supervising driver (see Kuebler v Kuebler, 90 AD3d 1611 [4th Dept. 2011]
Pierson v Dayton, 168 AD2d 173[4th Dept. 1991] Savone v Donges, 122
AD2d 34 [2d Dept. 1986]).
Mata argues in response that he was not in a position of loco parentis. He
claims that pursuant to VTL § 501(5)(b)(i) he did not assume the character of a
parent. He claims that the did not accompany Pourad to help him acquire driving
experience, [*5]rather he entered the vehicle without any
knowledge that Pourad only possessed a learner's permit. Thus, it is claimed that Pourad
was negligent per se in violating VTL § 501(5)(b)(i) by not having a proper
supervisor with him (citing Coogan v Torrisi, 47 AD3d 669 [2d Dept. 2008]).
Further, it is claimed that Pourad did not plead assumption of risk and cannot raise it now
as a defense for the first time (citing Charnovesky v City of New York, 283
AD2d 385 [2d Dept. 2001][assumption of the risk is an affirmative defense which is
deemed waived if not specifically pleaded]).
Defendants oppose that branch of the plaintiff's cross-motion to strike their
answer on the ground that Mata's deposition is not yet complete. Defendants claim
priority of completion of Mata's deposition before the defendants are deposed. Counsel
claims that it was not until Mata's deposition that they were first informed by Mata that
he had recently undergone a spinal fusion that was allegedly necessitated by injuries
sustained in the subject accident. As no records of the recent treatment were available at
the time of the deposition, defendants reserved their right to a subsequent deposition at a
later date upon receipt of the appropriate records.
NAPOLI'S MOTION FOR SUMMARY JUDGMENT ON THE ISSUE
OF COLLATERAL ESTOPPEL
"The doctrine of collateral estoppel precludes a party from relitigating an
issue which was previously decided against that party, or those in privity, in a proceeding
in which there was a fair opportunity to fully litigate the matter" (Strough v
Incorporated Vil. of W. Hampton Dunsee,78 AD3d 1037 [2d Dept. 2010] Ryan v
New York Tel. Co., 62 NY2d 494 [1984]). In order to invoke the doctrine, two
requirements must be met: (1) the identical issue must have been necessarily decided in
the prior action and must be decisive in the present action, and (2) the party who is
precluded from relitigating the issue must have had a full and fair opportunity to contest
the matter in the prior action (see Montoya v JL Astoria Sound, Inc., 92 AD3d 736 [2d Dept.
2012] Nachum v Ezagui, 83 AD3d 1017[2d Dept. 2011]). The proponent of
collateral estoppel has the burden of demonstrating that the issue was identical and
necessarily decided in the first action, whereas the opposing party has the burden of
establishing that there was no full and fair opportunity to litigate the matter in the prior
action (see Kaufman v Eli Lilly & Co., 65 NY2d 449 [1985]).
Here, this court finds that the identical issue of [*6]negligence and proximate cause as between the two drivers,
Napoli and Pourad, was determined in the prior proceeding in a decision on Napoli's
motion for summary judgment. Justice Lane granted partial summary judgment in favor
of Napoli as against Pourad finding that Napoli was not comparatively negligent for
causing the accident and that Pourad, who drove his vehicle from the middle lane into the
right lane cutting off the Napoli vehicle was 100% responsible for the accident. Pourad
argued in the prior motion as he does herein, that Mata's failure to supervise contributed
to the accident. However, Justice Lane found that the any negligence on the part of
Pourad, the learning driver, may not be imputed to the supervising or licensed
driver.
Although Mata was not a party to the prior action, he was served with the
prior motion for summary judgment and submitted an affirmation in opposition to
Napoli's motion. Further, Mata has not opposed the instant motion for an order granting
summary judgment to Napoli and has not demonstrated the absence of a full and fair
opportunity to contest the prior determination.
Accordingly, the motion by defendants MICHAEL C. NAPOLI and
MICHAEL J. NAPOLI for an order granting summary judgment dismissing the action
and all crossclaims against them is granted.
PLAINTIFF MATAS'S AND DEFENDANT POURAD'S
RESPECTIVE CROSS-MOTIONS FOR SUMMARY JUDGMENT
This Court finds that plaintiff Georges Mata is entitled to partial summary
judgment on the issue of liability as he was an innocent passenger who was not actively
negligent (see Medina v
Rodriguez, 92 AD3d 850 [2d Dept. 2012] Garcia v Tri-County Ambulette
Serv., 282 AD2d 206 [1st Dept. 2001] Johnson v Phillips, 261 AD2d 269
[1st Dept. 1999]). As the liability for the accident has been determined as between the
two drivers, and as Napoli has been found not to be negligent and is no longer a party to
the action, and as Pourad has been found to be 100 per cent negligent, than Mata who did
not engage in any culpable conduct that contributed to the happening of the accident is
entitled to partial summary judgment on the issue of liability against his host driver
Dayan Pourad.
Although there are cases that have held that there can be a finding of
assumption of risk for accompanying a non-licensed driver, assumption of risk was not
pleaded by the defendants as an affirmative defense in their answer and therefore was
waived (see Micallef v Miehle Co., 39 NY2d 376 [1976] Green v City of
New York, 308 AD2d 408 [1st Dept. 2003][defendants have waived [*7]any primary assumption of risk defense they may have had
by failing affirmatively to plead the defense] Charnovesky v City of New York,
283 AD2d 385 [2d Dept. 2001]). Further, this Court finds that defendants have not raised
any issues of fact as to Mata's culpable conduct in failing to supervise the 16 year old
who was driving with a learner's permit. Pursuant to statute, the plaintiff cannot be held
comparatively negligent for failure to supervise as he was neither the driver's parent,
guardian nor person in loco parentis.Pursuant to VTL § 501[5][b][i], a learner's
permit is not valid in the City of New York "except that the holder of such permit may
operate a motor vehicle within the city of New York ..when such person is under the
immediate supervision and control of a person at least twenty-one years of age who is
such holder's parent, guardian, person in a position of loco parentis..." Here,
notwithstanding the fact that Mata was a licensed driver he was not Pourad's parent,
guardian or one in loco parentis. Thus, Pourad was negligent per se for violating VTL
§ 501(5)(b)(i) in operating a vehicle although not accompanied by a parent or
guardian (see Coogan v Torrisi, 47 AD3d 669 [2d dept. 2008][a restriction
placed upon a driver's learner's permit requiring him or her to have a licensed adult driver
supervising his or her actions when driving related directly to the actual operation of the
vehicle. Accordingly, the statute sets up a standard of care, the unexcused violation of
which is negligence per se]).
Further, although Dayan Pourad and his father both submitted affidavits to
the effect that Mata was aware that defendant had a learner's permit and that he agreed to
supervise Pourad, Mata may not be designated or substituted as a supervisor in place of
the parent because the stature enumerates only certain categories of persons who have
been designated to supervise one with a learner's permit while operating a vehicle in the
City of New York. Thus by statute only certain enumerated categories of persons have a
duty to supervise the learning driver. The statute does not provide that any licensed
driver can assume, consent or undertake the duties of a statutorily enumerated parent or
guardian whose duty to supervise is prescribed by statute. The statute limits the
relationship of persons who may supervise an learning driver in New York City and does
not provide that any passenger with a driver's license has an independent or common law
duty supervise the learning driver (see Lazofsky v New York, 22 AD2d 858 [1st
Dept. 1964][at common law a licensed driver accompanying a learner is not liable for the
negligence of the learner]). The objective of the statute is to ensure that a parent,
guardian or person in loco parentis supervise the learner [*8]rather than any friend, any other relative or any licensed
passenger.
Further, although the plaintiff is alleged to have had a close and friendly
relationship with the defendant's family, the plaintiff is not one in loco parentis. For
purposes of the Vehicle and Traffic Law, a person in a position of " in loco parentis" to
the licensee is a person who, in relation to the licensee, has on a regular and extended
basis, assumed the character of a parent and is discharging parental duties as the result of
the death, disability or absence of the natural parent (see 15 NYCRR 1.1 [c]). Here, there
is no proof in the record that Mr. Mata assumed the character of a parent so as to fit
within this definition of "in loco parentis."
Accordingly, for all of the above stated reasons it is hereby,
ORDERED, that the motion by defendants Michael C. Napoli and Michael J.
Napoli, for an order pursuant to CPLR 3212 dismissing the plaintiff's complaint and all
cross-claims against them on the ground of collateral estoppel is granted, and it is
further,
ORDERED, that the cross-motion by defendants ROAD MASTERS
LEASING CORP., LIBERTY MOTOR CARS INC., and DAYAN POURAD for an
order granting summary judgment dismissing the plaintiff's complaint on the ground that
plaintiff consented to act as a supervising driver and/or assumed the risk of becoming a
passenger in a vehicle operated by a learning driver is denied in its entirety; and it is
further,
ORDERED, that the cross-motion by the plaintiff for an order striking the
defendants' affirmative defense of culpable conduct and granting partial summary
judgment on the issue of liability in favor of the plaintiff against the remaining
defendants is granted and that matter remains on the calendar for a trial on damages only
and it is further,
ORDERED, that the continued deposition of Mr. Mata and the outstanding
depositions of the defendants shall take place at such time and place as is convenient to
the parties but in no event later than 90 days from the date of this order. Any additional
IMEs and authorizations shall also be completed within 60 days of the date on this
order.
Dated: Long Island City, NY
May 19, 2014
______________________________
ROBERT J. MCDONALD
J.S.C.