Motion for Writ in Ryan Habalou v. Michele St. Clair| Trellis.Law

On September 06, 2018 a Motion-Secondary was filed involving a dispute between Ryan Habalou, and Michele St. Clair, for Torts - Motor Vehicle in the District Court of Erie County.

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STATE OF NEW Y
SUPREME COURT :: UNTY OF ERIE

RYAN HABALOU

Plaintiff,

vs.
Index No.: 814057/2018
MICHELE ST. CLAIR
Hon. Paul Wojtaszek, J.S.C.
Defendant.

MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT'S MOTION FOR
SUMMARY JUDGMENT

PRELIMINARY STATEMENT

This Memorandum of Law is submitted on behalf of the Plaintiff, RYAN HABALOU, in

opposition to the Motion for Summary Judgment brought by the Defendant, MICHELE ST.

CLAIR. For the reasons that follow, itis respectfully submitted that the Defendant has failed to

meet her burden at law to be entitled to Summary Judgment and therefore, the Defendant's

Motion must be denied in its entirety. Furthermore, the Defendant is not entitled to Spoliation of

Evidence in this matter so that portion of her Motion must also be denied in its entirety.

FACTS

The relevant facts of this matter and the medical records relied upon herein are set forth

in the accompanying Affidavit of Brian G. Stamm, and accordingly, they will not be repeated

herein.

LAW AND ARGUMENT IN OPPOSITION TO DEFENDANT'S MOTION FOR
SUMMARY JUDGMENT

The proponent of a Motion for Summary Judgment under the No-Fault Statute has the

burden of proof and must submit admissible evidence demonstrating, prima facie, that Plaintiff

did not sustain a serious injury as a matter of law as defined by Insurance Law § 5102(d). Monk

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v. Dupuis, 287 A.D.2d 187, 189 (2001). Lawyer v. Albany OK Cab Co., 142 A.D.2d 871, 530

N.Y.S.2d 904 (1988). In fact, "when the Defendant fails to establish entitlement to judgment as a

considered."
matter of law, the sufficiency of the Plaintiffs opposition papers need not be

Gamberg v. Romeo, 289 A.D.2d, 525, 526, 736 N.Y.S.2d 64 (2001).

Furthermore, "Summary Judgment is a drastic remedy which should not be granted where

issue" arguable."
there is any doubt as to the existence of a triable or "where the issue is All

competent evidence must be viewed in the light most favorable to the party in opposition.

Passorno v. Hall, 125 A.D.2d 767, 768 (1986).

The law in the State of New York is clear that Summary Judgment "is a drastic remedy

which should be avoided ifthere are found to be issues of facts requiring resolution by trialor

same."
there is demonstrated the probability of the existence of Melvin v. Sears Roebuck and

Company, 157 A.D.2d 964, 550 N.Y.S.2d 222, 222-223 (1990). In fact, Summary Judgment is

exist."
not appmp1iate "when even the slightest triable issue of fact can be shown to Ugarizza v.

Schmieder, 46 N.Y.2d 471, 474 (1979).

Furthermore, on a Motion for Summary Judgment, the Court's function is issue finding

rather than issue determination. Massie v. Crawford, 78 N.Y.2d 516, 522 (1991). "Ifmaterial

facts are in dispute or if contrary inferences may be drawn from undisputed facts, the issue is for

Motion."
the fact finders to decide on trial and not for determination by a judge on Gerard v.

Inglese, 11 A.D.2d 381 (1960).

As the Court is aware, on a Motion for Summary Judgment in determining whether or not

there are triable issues of fact for a jury to decide upon, the facts and evidence must be viewed in

the light most favorable to the Plaintiff, thus giving the Plaintiff the benefit of every reasonable

inference which can be reasonably drawn from the facts. Cook v. Rezende, 32 N.Y.2d 596

(1973) and Anderson v. Klein's Foods, Inc., 527 N.Y.S.2d 897 (1988). Therefore, if you take the

facts and evidence in a light most favorable to the Plaintiff, the Plaintiff need merely show the

existence of a triable issue of fact in order to oppose the motion brought by the defendant. Itis

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Plaintiff's position that she has brought forth such evidence and facts thereby requiring the denial

Defendants'
of motion.

A. As a result of the evidence submitted by the Plaintiff, Triable Issues of Material Fact

Remain to Preclude Granting Summary Judgmcat on the Issue of Negligence

As set forth in the Attorney Affidavit, Defendant has not met her burden as a matter of

law with regard to negligence and numerous issues of fact and conflicting testimony exists as to

how this accident occurred therefore rendering Summary Judgment unwarranted.

Courts have generally held that "all negligence cases do not generally lend themselves to

resolution by a Motion for Summary Judgment. Such a Motion will be granted where . .. the

other."
facts clearly point to the negligence of one party without any culpable conduct by the

Arnes v. Lee, 158 A.D.2d 414, 551 N.Y.S.2d 247 (1990). It cannot be said in this case that the

facts clearly point to the culpable conduct only of the Plaintiff and that the facts clearly point to

no culpable conduct by the Defendant. In fact, based on the evidence and the testimony of the

parties, there are clearly questions of fact which point to the negligence of the Defendant. These

are factual disputes that a jury must weigh in their deliberations when determining whether or not

the Defendant is at faultfor this accident, the Plaintiff is at fault for this accident or whether both

parties are at fault.

In order to establish a cause of action for negligence, the Plaintiff must show: "(1)The

existence of a duty flowing from Defendant to Plaintiff; (2) A breach of that duty; (3) A

reasonably close connection between the breach and the resulting injury (proximate cause); and

damage."
(4) Loss, harm or Febesh v. Elcjay Inc.,Corp., 157 A.D.2d 104, 555 N.Y.2d 46, 47

(1990). The Plaintiff argues that there are clearly issues of fact based on the cause of action of

negligence of whether the Defendant breached her duty of care that was owed to the Plaintiff.

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Itis well settled in New York that in an action involving a rear-end collision, the

Defendant driver, who is under a duty to maintain a safe distance between his vehicle and the

Plaintiffs vehicle, must come forward with proof of an adequate, non-negligent explanation to

avoid a finding of liability as a matter of law. See (Cohen v. Terranelllg, 112 A.D.2d 264, 491

(2nd (1"
N.Y.S.2d 711 Dep't. 1985); DeAngelis v. Kirschner, 171 A.D.2d 593, 567 N.Y.S.2d 457

(2nd
Dep't. 1991); Benvarko v. Avis Rent-A-Car Sys., 162 A.D.2d 572, 556 N.Y.S. 2d 761 Dep't.

(2nd
1990); Daliendo v. Johnson, 147 A.D.2d 312, 543 N.Y.S.2d 987 Dep't. 1989); Silberman v.

(2nd
Surrey Cadillac Limousine Serv.. 109 A.D.2d 833, 486 N.Y.S.2d 357 Dep't. 1985). "Absent

law"
a sufficient excuse, if a stopped vehicle is hit in the rear itis negligence as a matter of

(3rd
(Countermine v. Galka, 593 N.Y.S.2d 113 Dep't. 1993); see also Cohen v. Terranella, 112

(2nd
A.D.2d 264, 491 N.Y.S.2d 711 Dep't. 1985); DeAngelis v. Kirschner, 171 A.D.2d 593, 567

(l"
N.Y.S.2d 457 Dep't. 1991); Benvarko v. Avis Rent-A-Car Sys., 162 A.D.2d 572, 556 N.Y.S.

(2nd (2nd
2d 761 Dep't. 1990); Daliendo v. Johnson, 147 A.D.2d 312, 543 N.Y.S.2d 987 Dep't.

1989)).

The Appellate Division, Second Department, has held that a driver "was under a duty to

maintain a safe distance between the two vehicles and his failure to do so, in the absence of an

law"
adequate, non-negligent explanation, constituted negligence as a matter of (Silberman v.

(2nd
Surrev Cadillac Limousine Service, 486 N.Y.S. 2d 357, 109 A.D. 2d 833 Dept't 1985); see

(2nd
also Opalek v. Oshrain, 33 A.D. 2d 521, 305 N.Y.S. 2d 675 Dep't. 1969).

In 1994, the Second Department, relying on itsdecision in Silberman, held that "Pursuant

to Vehicle and Traffic Law section 1129(a), the operator of the vehicle in which the Plaintiff was

a passêñgcr was under a duty to maintain a safe distance between his vehicle and the vehicle in

front of him and his failure to do so, in the absence of an adequate, non-negligent explanation,

law"
constituted negligence as a matter of (Aromañdo v. City of New York, 609 N.Y.S. 2d 637,

(2nd
202 A.D. 2d 617 Dep't.1994)).

Ms. St. Clair rear-ended the Plaintiff's vehicle and has failed to offer a non-negligent

explanation for her actions.

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Defense counsel argues that the emergency doctrine is applicable here and itis Plaintiff's

position that exceptions to the emergency doctrine exist in the case at bar that render it

inapplicable, or, at the very least, enough triable issues of fact exist to render itiñapplicable.

Itis well settled that, "While a defendant will not be considered negligent for his or her

conduct if he or she is faced with an emergency situation, not of his or her own making, has little

or no time to consider an alternative course of conduct and acts reasonably under the

circumstances, itgenerally rersaiñs a question for the trier of fact to determine whether an

emergency existed and, ifso, whether the defendant's response thereto was reasonable.

Furthermore, merely encountering an emergency does not completely absolve one from liability,

it simply requires that one's conduct be measured against that of a reasonable person confronted

with similar circumstances in a similar time frame within which to react. We have previously

held in a case where a motorist suddenly encountered debris on the road that, except in the most

egregious circumstances, it isnormally left to the trierof fact to determine if a particular situation

emergency." (3"1
rises to the level of an Schlanner v. Doe, 53 A.D.3d 827, 828 Dep't. 2008).

Also, itis well settled that, "All drivers have a general duty to see that which through the

seen." (4th
proper use of their senses they should have Rost v. Stolzman, 81 A.D.3d 1401, 1402

Dep't. 2011). In the Rost case, plaintiff commenced action seeking damages for injuries

sustained in a motor vehicle accident where Defendant, Stolzman backed his automobile, in

which plaintiff was a passenger, out of the driveway of the Oliver home into the path of an

oncoming vehicle operated by Defendant, Martino. The Fourth Department found that Martino

was not entitled to summary judgment because "there is a triable issue of fact whether Martino

accident."
drove in a lawful and prudent manner immediately before the Id. at 1403. The Court

continued, "As a general rule, whether a party acted prudently is a question for the trierof fact,

and a driver confronted with an emergency situation may still be found to be at fault for the

resulting accident where his or her reaction is found to be unreasonable or where the prior

tortious conduct of the driver contributed to bringing about the crñêrgêñcy. Here, there are

triable issues of fact whether Martino's reaction to the automobile operated by Stolzman was

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reasonable and whether any negligence on thepart of Martino was a proximate cause of the

accident."
M.

Clearly, in the case at bar, a jury may find that Ms. St. Clair failed to see what was there

to be seen by failing to see the Plaintiff's vehicle which was directly in front of her, thereby

causing the accident. Ms. St. Clair testified herself that she has no sense of direction or time.

She testified that she noticed vehicles on the side of the road and then all of a sudden she saw a

vehicle - a corner of a vehicle - right at her and then that was it. she
coming wheel, However,

also testified that she didn't see it(the Plaintiff's vehicle) coming out or come out of the

driveway. She couldn't remember if the other vehicle had itslights on or not. She testified that a

corner of a vehicle started coming to hers but she doesn't know if ithit her because she never

saw it. She testified that when she first saw the other vehicle itwas sitting there idle stopped.

There was nothing blocking it and she could probably see the whole thing, at least the back end.

She testified that she saw the vehicle she made contact with move before she made contact with

it. She testified she did not know whether the speed limit in the area was 40 or 50 miles per

distances."
hour. She testified that she "does not know times or

For the reasons set forth above, the Plaintiff has established that summary judgment on

negligence should be denied in its entirety, as the Defendant was responsible for causing this

accident when she rear ended the Plaintiff. Furthermore, itis Plaintiff's position that the

emergency doctrine does not apply and that Ms. St. Clair did not act in a prudent and reasonable

manner. At the very least, a jury should be allowed to determine these issues of fact.

B. As a result of the evidêñcc submitted by the Plaintiff, Triable Issues of Material Fact

Remain to Prêclude Se=.mary Jads==t on the Issue of Serious In jury.
Granting

It isPlaintiff's position that the Defendant has failed to meet her burden as a matter of

law for entitlement to summary judgmeñt on serious injury. However, if thisCourt should find

that the Defendant has met her prima facie burden with regard to serious injury, the Plaintiff

contends that sufficient issues of triable fact stillremain to preclude Defendant from entitlement

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to Summary Judgmëñt. The Plaintiff has submitted sufficient admissible evidence in opposition

to the Defendant's motion to raise a question of fact.

The Plaintiff has submitted medical records and an Expert Affidavit to prove that the

Plaintiff has sustained a serious injury as direct result of this accident. Dr. Sherman has

established that the Plaintiff has sustained a permanent loss of use of a body organ, namely, his

appendix, as a direct result of this motor vehicle accident.

Various New York Courts have held, in viewing evidence similar to that presented by the

Plaintiff in this action, that factual issues stillremain for the jury's consideration as to whether or

injury" Defendants'
not a Plaintiff has sustained a "serious and have thus denied Motions for

Summary Judgment.

As cited by Defense counsel, The Court of Appeals has held that "only a total loss of use

remedy."
is compensable under the permanent loss of use exception to the no-fault Oberly v.

(4th
Bangs Ambulance, Inc., 96 N.Y.2d 295, 297 (2001); Beutel v. Guild, 28 A.D.3d 1192 Dep't.

2006).

Plaintiff's Expert Physician has opined that as a result of the accident, the Plaintiff

underwent an appendectomy thereby sustaining a permanent, total loss of use of his appendix by

virtue of its removal and that this is directly and causally related to the motor vehicle accident.

Plaintiff's Expert Affidavit and opinions, which sharply contrast those of Dr. Armstrong,

create questions of fact for a jury's determination whether or not the Plaintiff's appendectomy

was causally related to the accident and therefore, summary judgment on the issue of serious

injury must be denied.

LAW AND ARGUMENT IN OPPOSITION TO DEFENDANT'S MOTION FOR
SPOLIATION

(4th
The case of Simoneit v. Mark Cerrone. Inc., 122 A.D.3d 1246 Dep't. 2014) as cited

by Defense counsel is completely distinguishable from the case at bar and should not be

followed. In that case, there was a brake failure issue and Defendant was on notice that the brake

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calipers might be needed for future litigation. In the case at bar, there was no such issue and this

was a simple rear-end accident. There would simply be no reason for Plaintiff to anticipate that

the black box data from his vehicle would ever be relevant or discoverable by Defendant.

(4th
The case of Mahiaues v. County of Niagara, 137 A.D.3d 1649 Dep't. 2016) as cited

by Defense counsel is also completely distinguishable from the case at bar and should not be

followed. The fact pattern in Mahiques dealt with a Plaintiff who was struck by a pane of glass

that fell from a video slot machine at a casino.

Defense counsel has failed to make the requisite showing of prejudice arising from the

loss of the evidence to warrant sanctions and has not and cannot provide any caselaw whatsoever

supporting the position that spoliation sanctions would be warranted in the present case and

therefore, the motion must be denied.

With regard to black box/EDRs (Electronic Data Recorder), the Courts have held,

"A defendant was not on notice that the Electronic Data Recorder (EDR) in his car would be

needed for future litigation, his failure to preserve the car or EDR did not constitute negligent

spoliation of evidence. Moreover, plaintiff did not promptly request either the EDR or an

car." (1"
opportunity to inspect the Elmaleh v. Vroom, 160 A.D.3d 557 Dep't. 2018). In the

case at bar, Defense counsel never even requested black box information until January, 2019,

over 6 months after the accident and four (4) months after litigation was commenced. Certainly,

if a party cannot be held to a standard of spoliation for not preserving a vehicle or the EDR in

"anticipation"
of future litigation, itfollows that the Plaintiff would have no duty to preserve

these items after litigation was commenced. The Defendant did not promptly request either the

EDR nor the opportunity to inspect the car.

In Saeed v. City of New York, 2015 NY Slip Op 32624(U) (Sup. Ct. Queens Cty.), the

Court held, "Moreover, with respect to the request for sanctions based on the alleged spoliation

of evidence, plaintiff failed to present any evidence indicating that defendants intentionally or

negligently disposed of the EDR's of the vehicles involved in the subject accident after being

litigation."
placed on notice that they might be needed for future Id. at 5. In the case at bar,

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Plaintiff was never even put on notice that the black box may be ñêêded for future litigation and

Defendant failed to present any evidence that Plaintiff intentionally or negligently disposed of the

black box. Spoliation certainly is not warranted in this case.

The Defendant has failed to meet her burden that the Plaintiff has spoliated evidence and,

therefore, the portion of her motion seeking sanctions for spoliation must be denied in its

entirety.

CONCLUSION

Based upon the foregoing, the Plaintiff, RYAN HABALOU, respectfully requests that the

Motion brought by the Defendant, MICHELE ST. CLAIR, for Summary Judgment and

Spoliation be denied in allrespects and for such other and further relief as this Court deems just

and proper.

DATED: June 30, 2021
Williamsville, New York

Respectfully ubmitt

BRIAN G. St M, ESQ.

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Document Filed Date

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September 06, 2018

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Motion-Secondary: Ryan Habalou v. Michele St. Clair

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