[*1]
Martinez v Rodriguez
2014 NY Slip Op 50860(U) [43 Misc 3d 1230(A)]
Decided on June 4, 2014
Supreme Court, Nassau County
Marber, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on June 4, 2014
Supreme Court, Nassau County


David Martinez, Plaintiff,

against

Erin E. Rodriguez and GASTON RODRIGUEZ, Defendants.




004245/13



Elovich & Adell Esqs.



Attorneys for Plaintiff



164 West Park Avenue



Long Beach, NY 11561



(516) 432-6263



Martyn, Toher, Martyn and Rossi



Attorneys for Defendants



330 Old Country Road, Suite 211



Mineola, NY 11501



(516) 739-0000


Randy Sue Marber, J.

Papers Submitted:



Notice of Motion..........................................x



Affirmation in Opposition............................x



Reply Affirmation........................................x



Upon the foregoing papers, the motion by the Defendants seeking an Order granting them summary judgment, pursuant to CPLR § 3212, is decided as provided herein.



This instant action involves a motor vehicle accident, occurring on November 9, 2010 at approximately 5:25 p.m., wherein the vehicle driven by the Defendant, ERIN E. RODRIGUEZ, and owned by the Defendant, GASTON RODRIGUEZ, struck the front driver's side door of the vehicle owned by the Plaintiff as he was parked and sitting in said vehicle. The collision took place [*2]on Sheepshead Bay Road in Brooklyn, New York.



The Plaintiff alleges that he sustained a serious injury, pursuant to Insurance Law § 5102 (d), as a result of this accident.



Just prior to the accident, the Plaintiff alleges that he had parked the vehicle he was driving on the northbound side of Sheepshead Bay Road. He testified at his Examination Before Trial on November 13, 2013 that traffic conditions were heavy. (Tr. p. 24, line 10) Upon being asked what he did after he parked his car in the parking space on Sheepshead Bay Road, the Plaintiff testified that he took off his seatbelt, looked at the cars that passed him, looked in his side-view mirror and when he didn't see any other car he started to open the car door. The Plaintiff stated he looked in his side-view mirror and "don't see no other car and that's when I start to open the door". (Tr. p. 28, line 24) When asked if he ever turned his head and looked behind him, the Plaintiff responded that he looked in the side-view mirror to see if any cars were coming before opening his door. (Tr. p. 32, line 10) After the impact, the Plaintiff testified that the door swung against the fender of his car. (Tr. p. 36, line 10)



The Plaintiff claims that no part of the Defendant's vehicle came into contact with his body, but that he was pulled forward against the steering wheel. (Tr. p. 25, line 9)



The Defendants claim that the Plaintiff violated Vehicle and Traffic Law § 1214 by opening the door of his vehicle into the lane of moving traffic and as such was negligent in failing to see what he should have seen, the Defendants' vehicle. The Defendants argue that the sole cause of the accident was the Plaintiff's violation of Vehicle and Traffic Law § 1214.



The Defendants are seeking summary judgment, pursuant to CPLR § 3212, stating that the Plaintiff was solely responsible for causing the accident.



The Plaintiff opposes the Defendants' motion for summary judgment, stating that there are questions of fact to be determined as to the speed of the Defendant's car and whether the Defendant saw the door of the Plaintiff's car open. The Plaintiff's counsel contends that the Defendant, ERIN RODRIGUEZ, when she testified at her Examination Before Trial, contradicted herself by first stating she was going 20 mph then stated she was going 15 mph. Additionally, Plaintiff's counsel contends that the Defendant's testimony is contradictory because she stated she did not see the Plaintiff open his car door yet also states that she saw it open very fast. The Plaintiff's counsel argues that the cause of the accident was the Defendant's inattention to the roadway. Counsel claims that the Defendant was distracted by a stopped police vehicle on the other side of the roadway. Lastly, the Plaintiff's counsel claims that the Defendant gives no explanation as to where she was looking just prior to the accident and why she was traveling two feet behind the vehicle in front of her.



Summary judgment is a drastic remedy and should only be granted when there are no triable issues of fact. Andre v. Pomeroy, 35 NY2d 361 (1974). The goal of summary judgment is to issue find, rather than issue determine. Hantz v. Fleischman, 155 AD2d 415 (2d Dept. 1989). In this instant matter, neither party denies that the right side of the Defendants' vehicle struck the left side of the Plaintiff's vehicle as he opened his driver's side door on the side available to moving traffic. What the Plaintiff's counsel attempts to put into dispute is whether the collision occurred as a result of the Plaintiff's sole negligence in opening his door into the lane of moving traffic or whether the Defendant could have avoided hitting the Plaintiff's door if she was being more attentive and was not distracted by the police vehicle parked on the opposite side of the roadway.



Issue finding, rather than issue determination, is the key to summary judgment. In re Cuttitto Family Trust, 10 AD3d 656 (2d Dept. 2004); Greco v. Posillico, 290 AD2d 532 (2d Dept. [*3]2002); Gniewek v. Consolidated Edison Co., 271 AD2d 643 (2d Dept. 2000); Judice v. DeAngelo, 272 AD2d 583 (2d Dept. 2000). The court should refrain from making credibility determinations, (see S.J. Capelin Assoc. v. Globe Mfg. Corp., 34 NY2d 338 (1974); Surdo v. Albany Collision Supply Inc., 8 AD3d 655 (2d Dept. 2004); Greco v. Posillico, supra; Petri v. Half Off Cards, Inc., 284 AD2d 444 (2d Dept. 2001), and the papers should be scrutinized carefully in the light most favorable to the party opposing the motion. Glover v. City of New York, 298 AD2d 428 (2d Dept. 2002); Perez v. Exel Logistics, 278 AD2d 213 (2d Dept. 2000).



The Defendants contend that that Plaintiff caused the accident by opening his door into oncoming traffic in violation of Vehicle and Traffic Law § 1214. The Plaintiff contends that the Defendant failed to be attentive and was distracted. The Plaintiff, for the first time, in his Affidavit in opposition to the Defendants' motion, characterizes his opening of the door as "slowly" and that "approximately 7-10 seconds elapsed between when I started to open the door and when the accident occurred". He did not testify at his deposition that he opened the door slowly. Nor did he testify that 7-10 seconds elapsed from the time he opened the door until the accident. (Tr. p. 31, line 22)



Generally, the court's role in a motion for summary judgment is not one of resolving issues of credibility. However, courts have held that any inconsistencies that may exist between the deposition testimony of the plaintiff and the plaintiff's affidavit submitted in opposition to the summary judgment motion, generally present credibility issues for trial (see Knepka v. Tallman, 278 AD2d 811 [4th Dept. 2000] Yaziciyan v. Blancato, 267 AD2d 152 [1st Dept. 1999]). However, it has also been established that where self-serving affidavits submitted by a plaintiff in opposition clearly contradict the plaintiff's own deposition testimony and can only be considered to have been tailored to avoid the consequences of earlier testimony, they are insufficient to raise a triable issue of fact to defeat the defendants' motion for summary judgment (see Phillips v. Bronx Lebanon Hosp., 268 AD2d 318 [1st Dept. 2000] see also Wright v. South Nassau Communities Hosp., 254 AD2d 277 [2d Dept. 1998]).



The Plaintiff's rendition of the facts, as summarized in his Affidavit in opposition, clearly contradicts his earlier statements in his Examination Before Trial:

Q...How much time elapsed between the time you looked in your side-view mirror and the time you opened your driver's side door or were you looking in the mirror as you opened the door? (Tr. p. 31, line 22)

A...I first look into the mirror, make sure no car coming and after I make sure there not a car coming, I start to open the door. (Tr. p. 32, line 1)



The Affidavit testimony that is obviously prepared in support of ongoing litigation that directly contradicts deposition testimony previously given by the same witness, without any explanation accounting for the disparity, creates only a feigned issue of fact, and is insufficient to defeat a properly supported motion for summary judgment (see Telfeyan v. City of New York, 40 AD3d 372 [1st Dept. 2007]).



Additionally, although the Plaintiff's counsel attempts to paint the Defendant, Erin Rodriguez' deposition testimony as contradictory, a careful reading of her deposition transcript does not support that characterization. To the contrary, the evidence establishes that the Plaintiff violated VTL § 1214 by opening his door on the side adjacent to moving traffic when it was not reasonably safe to do so, as both parties testified that traffic was heavy. The Plaintiff was negligent in failing to see what, by the reasonable use of his senses, i.e. actually looking behind him and not solely relying on his side-view mirror, what he should have seen.



On these facts, the Defendants have established, prima facie, their entitlement to judgment as a matter of law. In opposition, the Plaintiff failed to raise a triable issue of fact.



Accordingly, it is hereby



ORDERED, that the Defendants' motion for summary judgment, pursuant to CPLR § 3212, on the issue of liability is GRANTED and the complaint is dismissed without costs.



All applications not specifically addressed herein are DENIED.



This decision constitutes the order of the court.



DATED:Mineola, New York



June 4, 2014



________________________________



Hon. Randy Sue Marber, J.S.C.

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