Supreme Court, Bronx County, November 18, 2019

Siegel & Coonerty, LLP, New York City (Michael Peters of counsel), for plaintiff.

Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York City (Daniel J. Morse of counsel), for Stanley F. Davis and another, defendants.

Picciano & Scahill, P.C. (Christopher J. McCune of counsel) for Maritza Deliz, defendant.

Fabiani Cohen & Hall, LLP (Joelle Y. Reboh of counsel) for City of New York and others, defendants.

Ahumty Demers & McManus (Steven D. Zecca of counsel) for Carlo Lizza & Sons Paving, Inc., defendant.

When an individual dies as a result of an accident on a roadway within New York State, the State's Department of Motor Vehicles is apt to conduct an administrative inquiry into the accident for the purposes of determining whether one or more of the parties involved in the accident violated any pertinent provision or provisions of the Vehicle and Traffic Law, and whether the license or registration of an offender ought to be suspended or revoked (see Vehicle and Traffic Law § 510 [3]). Is the administrative determination in the Department of Motor Vehicles proceeding entitled to collateral estoppel effect in a personal injury action related [*2]to the same accident? Plaintiff's motion for summary judgment presents this question, on which there is little direct decisional authority.

Facts and Procedural Background

On the morning of April 29, 2017, defendant Deliz was operating her motor vehicle in the left lane of the northbound service road on Bruckner Boulevard. Plaintiff was seated in the driver's side rear seat, and the decedent was seated in the passenger's side rear seat. A garbage truck operated by defendant Davis, who was employed by defendant Avid Waste Systems, Inc., struck the rear of defendant Deliz's vehicle while that vehicle was moving. The result of the accident was horrific: the decedent, a three-year-old girl, suffered catastrophic injuries to which she succumbed within approximately 30 minutes of the accident.{**66 Misc 3d at 301}

On September 28, 2017, plaintiff, in her individual capacity and as the administratrix of the decedent's estate, commenced this action against defendants Davis, Avid Waste and Deliz seeking damages, among other things, for the personal injuries of both plaintiff and the decedent, and the wrongful death of the decedent. Defendants Davis and Avid Waste interposed a joint answer to the complaint. On January 10, 2018, plaintiff filed a supplemental summons and amended complaint adding several additional entities as party defendants; defendants Davis and Avid Waste interposed a joint answer to the amended complaint.

Administrative Proceeding

Approximately two weeks after plaintiff filed the supplemental summons and amended complaint, the New York State Department of Motor Vehicles' Division of Safety and Business Hearings noticed a hearing, under Vehicle and Traffic Law § 510 (3), "to determine . . . whether [Davis' and/or Maritza Deliz's] registration, license and/or driving privileges should be suspended or revoked" as a result of the manner in which they operated their respective vehicles at the time of the accident. The notice warned defendants Davis and Deliz that their "failure to appear for the hearing m[ight] result in suspension or revocation of their license[s] or driving privileges."

On March 16, 2018, the hearing was held before an administrative law judge (ALJ). Defendant Davis appeared for the hearing with an attorney. Also present for the hearing were attorneys for plaintiff, and an attorney for defendant Deliz. Although she was named as a respondent to the Department of Motor Vehicles' proceeding, Deliz herself declined to appear at the hearing. Defendant Davis was the lone witness to testify.

According to defendant Davis' hearing testimony, the accident occurred when he was attempting to go around a vehicle that was stopped in his lane of [*3]travel, i.e., the right lane of the service road, and the front of his truck made contact with the rear passenger's side quarter panel of defendant Deliz's vehicle, which was in the left lane of the service road. Defendant Davis testified that the segment of the service road on which the accident occurred was in the process of being resurfaced, and that roadway markings were not present on the milled (but not yet repaved) roadway. Defendant Davis' narrative of the accident suggested that the accident occurred, at least in part, because defendant Deliz's vehicle "came in the path of the [garbage] truck" and Deliz applied the brakes of her vehicle{**66 Misc 3d at 302} abruptly. At the close of the ALJ's examination of defendant Davis, his attorney submitted the affidavit of an accident reconstructionist and over 100 photographs of the vehicles and the accident scene. Counsel for defendant Deliz was then permitted to ask defendant Davis a number of questions. In summation, defendant Davis' counsel argued that Davis was faced with an emergency situation not of his own making, that he could not have avoided the accident, and that "no adverse action [should be] taken [by the Department of Motor Vehicles] against [Davis'] license."

In his June 8, 2018 "findings and disposition," the ALJ concluded that defendant Davis had violated Vehicle and Traffic Law § 1180 (a), which requires that a motor vehicle be operated at a speed that is reasonable and prudent under the circumstances.^[FN1] The ALJ's conclusion was based on the hearing testimony and defendant Davis' submissions thereat, and New York City Police Department reports and records related to the accident. The ALJ imposed the penalty of a 60-day suspension of defendant Davis' license and driving privileges. No express findings were made as against defendant Deliz; the matter was simply marked[*4]"closed" with respect to her.

Present Motions

In December 2018, plaintiff moved for summary judgment on the issue of the liability of defendants Davis and Avid Waste, and dismissal of defendants' respective affirmative defenses alleging plaintiff's and decedent's alleged comparative fault.{**66 Misc 3d at 303}

Plaintiff argued that, by virtue of the ALJ's determination, defendants Davis and Avid Waste are collaterally estopped from relitigating the issues of whether Davis violated Vehicle and Traffic Law § 1180 (a), whether Davis was negligent in operating the garbage truck, and whether his negligence was a proximate cause of the accident. Plaintiff contended that the issues on which she seeks collateral estoppel treatment in the present action are identical to the issues determined by the ALJ, and that defendant Davis had a full and fair opportunity to litigate the issues of his negligence and its relation to the accident. Although defendant Avid Waste was not a party to the administrative proceeding, plaintiff maintained that Avid Waste is liable as a matter of law because it has admitted in its pleadings both that it was defendant Davis' employer at the time of the accident and that Davis was operating the garbage truck in the scope of his employment with Avid Waste at the time of the accident. With respect to her request for relief regarding defendants' respective comparative fault defenses, plaintiff insisted that dismissal of those defenses is required because she and the decedent were innocent, rear-seated passengers in defendant Deliz's vehicle.

Plaintiff supported her motion with the pleadings, and various documents related to the administrative proceeding.

Defendants Davis and Avid Waste opposed plaintiff's motion, arguing that the issue before the ALJ and the issues in this plenary action are not identical: the issue before the ALJ was whether defendant Davis' license was to be suspended or revoked, while the issues in this action concern the negligence of the defendants, and the causal relationship (if any) between the defendants' negligence (if any) and the accident. Defendants Davis and Avid Waste argued also that they did not have a full and fair opportunity to contest their liability before the ALJ.

Defendant Deliz, defendant Carlo Lizza & Sons Paving, Inc. (the Lizza defendant), and defendants City of New York, New York City Department of Transportation and New York City Department of Design and Construction (the City defendants) essentially supported plaintiff's motion to the extent that it was [*5]directed against defendants Davis and Avid Waste.^[FN2]

{**66 Misc 3d at 304}By a separate motion, defendant Deliz moved for summary judgment dismissing the complaint as against her and the cross claims against her. Invoking the familiar principles that a rear-end collision establishes a prima facie case of negligence on the part of the driver of the rear vehicle, and imposes a duty on the part of the operator of that vehicle to come forward with an adequate non-negligent explanation for the accident (see Cabrera v Rodriguez, 72 AD3d 553, 553 [1st Dept 2010]), defendant Deliz contended that defendant Davis has no non-negligent explanation for the accident, and is therefore solely responsible for the accident.

In support of her motion, defendant Deliz submitted, among other things, her affidavit.^[FN3] Defendant Deliz averred that at the time of the accident she was operating her vehicle at a speed of approximately 20 miles per hour in the left lane of the service road. Defendant Deliz averred further that, immediately before the accident, she "slowed her vehicle down because [she] saw a raised sewer cap in the roadway in front of [her vehicle]," and that "[a]s [she] slowed [her] vehicle, [she] felt an impact to the rear of [her vehicle], towards the passenger-side."

Plaintiff opposed defendant Deliz's motion, arguing that the motion is premature because depositions have yet to be taken and issues related to Deliz's liability cannot be determined as a matter of law.^[FN4] Additionally, pointing to defendant Davis' testimony before the ALJ, plaintiff contended that material issues of fact exist as to whether defendant Deliz made an unsafe lane change from the left lane of the service road into the right lane of the service road (see Vehicle and Traffic Law § 1128 [a]), and whether any such unsafe lane change was a proximate cause of the accident.{**66 Misc 3d at 305}

Defendants Davis and Avid Waste opposed defendant Deliz's motion on the grounds that the ALJ's findings are not binding in this action, and that triable issues of fact exist as to the defendants' liability because of the conflicts between Deliz's version of the accident (as expressed in her affidavit) and Davis' version of the accident (as expressed in his testimony before the ALJ). In particular, defendants Davis and Avid Waste argued that triable issues of fact exist as to whether defendant Deliz applied her brakes abruptly, moved from the left lane of the service road into the right lane of the service road in an unsafe manner, or both; whether any negligence on Deliz's part was a proximate cause of the accident; and whether Davis and Avid Waste are shielded from liability by the emergency doctrine.

For its part, the Lizza defendant argued that defendant Deliz's motion is premature, and that triable issues of fact exist as to her liability.

The City defendants essentially supported defendant Deliz's motion to the extent that it was directed against plaintiff.

Plaintiff's Motion—Collateral Estoppel

"Collateral estoppel, or issue preclusion, gives conclusive effect to an administrative agency's quasi-judicial determination when two basic conditions are met: (1) the issue sought to be precluded is identical to a material issue necessarily decided by the administrative agency in a prior proceeding; and (2) there was a full and fair opportunity to contest this issue in the administrative tribunal (see Ryan v New York Tel. Co., 62 NY2d 494 [1984]; see also Schwartz v Public Adm'r of County of Bronx, 24 NY2d 65 [1969])" (Jeffreys v Griffin, 1 NY3d 34, 39 [2003]).

The malleable doctrine of collateral estoppel, which is rooted in basic fairness (see D'Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 664 [1990]), is applied with particular flexibility in the context of the determinations of administrative agencies (Auqui v Seven Thirty One Ltd. Partnership, 22 NY3d 246, 255 [2013]; Allied Chem. v Niagara Mohawk Power Corp., 72 NY2d 271, 276 [1988]). Ultimately,

"the fundamental inquiry [regarding whether collateral estoppel effect should be given to the determination of an administrative agency] is whether relitigation should be permitted in a particular case{**66 Misc 3d at 306} in light of what are often competing policy considerations, including fairness to the parties, conservation of the resources of the court and the litigants, and the societal interests in consistent and accurate results" (Jeffreys v Griffin, 1 NY3d at 40 [internal quotation marks omitted], quoting Staatsburg Water Co. v Staatsburg Fire Dist., 72 NY2d 147, 153 [1988]).

Regarding the first basic condition, the material issues before the Department of Motor Vehicles' ALJ that he was empowered to determine were [*7]whether defendant Davis or defendant Deliz violated any pertinent provision or provisions of the Vehicle and Traffic Law, and whether the license or registration of an offender ought to be suspended or revoked (see Vehicle and Traffic Law § 510 [3] [a]; see also Curtin v Curtin, 244 AD2d 927, 927 [4th Dept 1997]; Levine v Tolchin, 239 AD2d 279, 280 [1st Dept 1997]). The notice of hearing generated by the Department of Motor Vehicles made the point that only those issues would be determined in the administrative proceeding, and cautioned those defendants that their default would expose them, at most, to the "suspension or revocation of their license[s] or driving privileges." As discussed above, the ALJ determined that defendant Davis violated Vehicle and Traffic Law § 1180 (a), and suspended his license.

A material issue that the ALJ necessarily decided—whether defendant Davis violated Vehicle and Traffic Law § 1180 (a)—is identical to a central issue in this action: whether Davis negligently operated the garbage truck. After all, an unexcused violation of Vehicle and Traffic Law § 1180 (a) constitutes negligence (see Delgado v Martinez Family Auto, 113 AD3d 426 [1st Dept 2014]; see also 1A NY PJI3d 2:26 [2019]). Thus, with respect to the issue of defendant Davis' violation of Vehicle and Traffic Law § 1180 (a) (and the inextricably interwoven issue of his negligence), the first basic condition for collateral estoppel effect is satisfied.

However, the identity-of-issue condition for collateral estoppel treatment is not satisfied with respect to the other issue that plaintiff seeks to preclude defendants Davis and Avid Waste from relitigating: whether defendant Davis' violation of Vehicle and Traffic Law § 1180 (a) (and his attendant negligence) was a proximate cause of the subject accident.

The issue of whether defendant Davis' violation of any Vehicle and Traffic Law provision caused, in whole or in part, the{**66 Misc 3d at 307} subject accident was not before the ALJ. Vehicle and Traffic Law § 510 (3), the provision under which the administrative proceeding was noticed and held, did not grant the ALJ adjudicatory authority to decide that causation issue (see Curtin v Curtin, 244 AD2d at 928). To paraphrase Auqui, the focus of a Department of Motor Vehicles' administrative hearing under Vehicle and Traffic Law § 510 (3) is on whether an individual or entity violated any pertinent provision of the Vehicle and Traffic Law and, if so, whether the offender's license or registration should be suspended or revoked (see Auqui v Seven Thirty One Ltd. Partnership, 22 NY3d at 256). The ALJ's statements in his "findings and disposition" suggesting that the manner in which defendant Davis operated the garbage truck caused the subject accident were therefore gratuitous findings that cannot be given collateral estoppel effect (see Siegel & Connors, NY Prac § 465 [6th ed 2018]). Thus, with respect to the issue of whether defendant Davis' violation of Vehicle and Traffic Law § 1180 (a) (and his [*8]attendant negligence) was a proximate cause of the accident, the first basic condition for collateral estoppel effect is not satisfied.

While the issue of defendant Davis' violation of Vehicle and Traffic Law § 1180 (a) (and his attendant negligence) is common between the administrative proceeding and this plenary action, defendants Davis and Avid Waste will be estopped from relitigating that issue if, and only if, they had a full and fair opportunity to contest the issue before the ALJ.

"A determination whether the first . . . proceeding genuinely provided a full and fair opportunity requires consideration of the realities of the prior litigation, including the context and other circumstances which may have had the practical effect of discouraging or deterring a party from fully litigating the determination which is now asserted against him [or her]. Among the specific factors to be considered are the nature of the forum and the importance of the claim in the prior litigation, the incentive and initiative to litigate and the actual extent of litigation, the competence and expertise of counsel, the availability of new evidence, the differences in the applicable law and the foreseeability of future litigation" (Ryan v New York Tel. Co., 62 NY2d at 501 [citation, internal quotation marks, brackets and asterisks omitted]; see Schwartz v Public Adm'r of County of Bronx, 24 NY2d at 72;{**66 Misc 3d at 308} see also Siegel & Connors, NY Prac § 467).

Given the nature of the administrative forum, the issues that the ALJ could adjudicate were narrow (see comments of the ALJ at the hearing, hearing tr at 4-6, 33-35), defendant Davis was not afforded any prehearing discovery, and the rules of evidence in civil litigation did not apply (see Jay Carlisle, Getting A Full Bite of the Apple: When Should the Doctrine of Issue Preclusion Make an Administrative or Arbitral Determination Binding in A Court of Law?, 55 Fordham L Rev 63, 84-87 [1986] [arguing that the absence of discovery and formal rules of evidence in an administrative proceeding indicates that the party against whom the estoppel would operate did not have a full and fair opportunity to contest the issue or issues resolved in the administrative proceeding]). With respect to the latter, the character of evidence upon which the ALJ could base his determination was broad—he could (and did) rely on hearsay that would not have been admissible in a plenary action. Obviously, defendant Davis did not have the option of a jury trial in the administrative proceeding (see Gilberg v Barbieri, 53 NY2d 285, 293 [1981]).

The "claim" in the administrative proceeding was relatively modest (that defendant Davis violated one or more provisions of the Vehicle and Traffic Law), as were the stakes (his license could be suspended or revoked) (see Curtin v Curtin, 244 AD2d at 927; Levine v Tolchin, 239 AD2d at 280; Rice v Massalone, 160 AD2d 861, 862 [2d Dept 1990]; see also Gilberg v Barbieri, 53 NY2d at 292-[*9]293; cf. Jeffreys v Griffin, 1 NY3d at 42).

Defendants Davis and Avid Waste did not initiate the administrative proceeding; Davis was a respondent and Avid Waste was not a party (see Gilberg v Barbieri, 53 NY2d at 293; cf. Allied Chem. v Niagara Mohawk Power Corp., 72 NY2d at 277-278; Ryan v New York Tel. Co., 62 NY2d at 503-504).

The administrative proceeding was not extensive: it entailed the testimony of one witness, defendant Davis, submissions by Davis, and New York City Police Department reports and records (see Levine v Tolchin, 239 AD2d at 280; Rice v Massalone, 160 AD2d at 862; cf. Ryan v New York Tel. Co., 62 NY2d at 503). Critically, defendant Deliz did not testify at the administrative proceeding, and, consequently, counsel for defendants Davis and Avid Waste did not have an opportunity to examine her (cf. Allied Chem. v Niagara Mohawk Power Corp., 72 NY2d at 278; Ryan v New York Tel. Co., 62 NY2d at 503). Given the contextual nature of the traffic offense that defendant Davis{**66 Misc 3d at 309} was determined to have violated, the absence of testimony from defendant Deliz is important (see Vehicle and Traffic Law § 1180 [a] ["No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing" (emphasis added)]). Moreover, none of the police officers involved in the response to or investigation of the accident testified at the administrative proceeding (see Levine v Tolchin, 239 AD2d at 280).

Notably too affording collateral estoppel effect to the ALJ's determination would not reduce the amount of litigation in this and similar actions in which issues of the potential negligence of multiple parties, and the causal relationship (if any) between one or more tortfeasor's negligence and the accident must be resolved by a factfinder (see Gilberg v Barbieri, 53 NY2d at 294; cf. Schwartz v Public Adm'r of County of Bronx, 24 NY2d at 74).

Although this action was pending at the time of the administrative proceeding (providing defendant Davis with greater incentive to offer a defense at the administrative proceeding), Davis was represented by competent and experienced counsel at the proceeding, and Davis offered a meaningful defense at the proceeding, the reality of the administrative proceeding is that it was not sufficiently extensive on the issue of defendant Davis' violation of Vehicle and Traffic Law § 1180 (a) (and, necessarily, the issue of whether he was negligent) (cf. Ryan v New York Tel. Co., 62 NY2d at 503). The procedures used in the administrative proceeding do not permit confidence that the facts relating to whether defendant Davis violated Vehicle and Traffic Law § 1180 (a) were adequately tested, and the issue of whether Davis violated that provision (and was therefore negligent) was not fully aired (cf. Jeffreys v Griffin, 1 NY3d at 40-41; [*10]Allied Chem. v Niagara Mohawk Power Corp., 72 NY2d at 276-277). In short, defendant Davis (and, by extension, defendant Avid Waste) was not afforded the same—or substantially the same—opportunity to litigate his liability in the administrative proceeding as he will have in this plenary action (see Gilberg v Barbieri, 53 NY2d at 294). Thus, the ALJ's determination is not entitled to collateral estoppel effect.^[FN5]

{**66 Misc 3d at 310}Because plaintiff's collateral estoppel argument fails and she did not offer any evidence in admissible form establishing a prima facie showing of entitlement to judgment as a matter of law on the issue of defendants Davis' and Avid Waste's liability or the issues of plaintiff's and decedent's alleged comparative fault, plaintiff's motion is denied.

Defendant Deliz's Motion—Deliz's Liability

Defendant Deliz's motion for summary judgment dismissing the complaint as against her and the cross claims against her must be denied.

Through her affidavit, defendant Deliz made a prima facie showing that defendant Davis struck the rear of her vehicle, and that he was therefore responsible for the accident and she was free from fault (see Giap v Hathi Son Pham, 159 AD3d 484, 485 [1st Dept 2018]). Plaintiff and defendants Davis and Avid Waste, however, raised triable issues of fact as to whether defendant Deliz was negligent in the operation of her vehicle, and, if so, whether any such negligence was a proximate cause of the accident.

Viewing the evidence in the light most favorable to the non-moving parties (see Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012]), avoiding the determination of credibility questions (see Ferrante v American Lung Assn., 90 NY2d 623, 631 [1997]), and following the principle that issue finding (as opposed to issue determination) is the court's function on summary judgment (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]), the sworn testimony of defendant Davis from the administrative proceeding raises triable issues of fact [*11]as to whether defendant Deliz applied her brakes abruptly, moved from the left lane of the service road into the right lane of the service road in an unsafe manner, or both, and whether any negligence on Deliz's part was a proximate cause of the accident.

In any event, as plaintiff and defendants Davis and Avid Waste argued, defendant Deliz's motion is premature. Because{**66 Misc 3d at 311} of the unusual nature of the subject accident and the uncertainty as to which of multiple potential causative factors resulted in the accident, discovery, particularly depositions, is necessary before summary judgment on liability can be more thoroughly and thoughtfully evaluated.

Conclusion

Accordingly, it is hereby ordered that plaintiff's motion and the separate motion of defendant Deliz are denied without prejudice to new summary judgment motions following the filing of the note of issue and certificate of readiness.

"I concur with the NYPD [Collision Investigation Squad's] findings in that the cause of this unfortunate accident was operator error on the part [of defendant] Davis. In an attempt to overtake another vehicle that was in his path it appears that [defendant] Davis entered [defendant] Deliz's lane of travel at or around the same time that she was braking to avoid [a] raised sewer cap. The simultaneous events caused the accident and unfortunate death of [the decedent]. Based upon the fact that [defendant] Davis' [garbage] truck could not stop to avoid [defendant Deliz's vehicle], collided with it, drove up onto it, pushed the vehicle into a concrete pillar and carried it 129 feet following the collision, [defendant] Davis' speed was a factor in this accident.

"Taking into consideration the size of his vehicle and the condition of the roadway, graded with raised sewer covers, I do not believe that [defendant] Davis was operating at a speed that was reasonable and prudent under the conditions that were present and find that Davis violated VTL 1180 (a) as it relates to this accident."