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The Rogak Report: 07 June 2006 ** Auto Liability - Sleeping Driver **

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  • Lawrence Rogak
    Schiffman v Hann Auto Trust 2006 NY Slip Op 51060(U) Decided on May 30, 2006 Supreme Court, Nassau County Palmieri, J. Edited by Lawrence N. Rogak Decided
    Message 1 of 1 , Jun 7, 2006
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      Schiffman v Hann Auto Trust
      2006 NY Slip Op 51060(U)
      Decided on May 30, 2006
      Supreme Court, Nassau County
      Palmieri, J.
      Edited by Lawrence N. Rogak
      This opinion is uncorrected and will not be published in the printed Official Reports.


      Decided on May 30, 2006
      Supreme Court, Nassau County


      Bruria Schiffman, Plaintiff,

      against

      Hann Auto Trust, Lawrence H. Schiffman, and Hann Financial Services Corporation, Defendants.




      Index no. 17016/04

      This action arose out of an automobile accident that took place in Nassau County on August 10, 2004. Plaintiff, a passenger in an automobile being driven by third-party defendant Daniel Schiffman, was injured when the vehicle struck a utility pole and a tree. The car was leased by defendant Lawrence Schiffman from the defendants Hann Financial Service Corp., and/or Hann Auto Trust, who, for the purpose of  this decision, were treated as a single defendant. Since defendant Lawrence H. Schiffman was by way of settlement been released by plaintiff, this motion by plaintiff was directed at Hann.

      The police officer who investigated the accident testified at an examination before trial that the third-party defendant and driver of the vehicle stated to him after the accident that he "fell asleep" and struck a utility pole and a tree. The plaintiff who was herself sleeping saw and remembers nothing of the accident.

      Hann's motion sought summary judgment on its cross claims against its lessee for contractual indemnification pursuant to the terms of the auto lease, common law indemnification and contribution. Hann also opposes the plaintiff's motion on the grounds that a question of fact exists as to whether or not the driver was asleep and objects to the use in evidence of the examination before trial testimony of the investigating police officer, as well as his police accident report.

      The Court held, first, that "Since the police officer was acting within the scope of his duty in recording the driver's statement that he fell asleep and the statement is admissible as the admission of a party, it is appropriate to consider the police report,  especially where, as here, the statement made by the driver was reported by the police officer under oath at his examination before trial. "

      "Moreover, the statement of having fallen asleep is admissible as an excited utterance and as a declaration against interest, even when the declarant is not a party. A statement may be admitted under the excited utterance exception to the hearsay rule when the declarant spoke while under the stress or influence of the excitement caused by an external event so that his reflective capacity was stilled. The decisive factor is whether the surrounding circumstances reasonably justify the conclusion that the remarks were not made under the impetus of studied reflection.  A declaration against interest is admissible even where the declarant is a non-party but is unavailable to testify. Here, the declarant driver is now a resident of Israel and is thus unavailable. "

      "The testimony of the police officer is to the effect that he arrived at the scene within minutes of the accident and that the driver was lucid and plaintiff was lying on the ground screaming. The first question asked of the driver was an inquiry of what happened and his answer was immediate. Clearly these facts and circumstances support the conclusion that the driver's statement of falling asleep qualifies as an excited utterance, and as well as a declaration against interest. It is established law in this Department that a showing that a driver fell asleep while driving raises a rebuttable presumption of negligence since the onerous burden of establishing the circumstances under which he fell asleep would be a difficult, if not insurmountable burden for a plaintiff to overcome. It is then the defendant's burden to offer an explanation sufficient to create a triable issue of fact.  Here, there has been no offer of a non-negligent explanation for the accident and thus, summary judgment is appropriate."

      "In any event, summary judgment should be granted in plaintiff's favor on the issue of liability even absent consideration of the driver's statement."

      "Plaintiff has established entitlement to judgment, thus shifting the burden to the defendant to rebut the movants case by submitting proof in evidentiary form showing the existence of triable issues of fact.   The Court of Appeals has recently reviewed the applicability of the res ipsa loquitur doctrine to summary judgment motions and reinforced the notion that the rule creates an inference which is a brand of circumstantial evidence that may be sparingly used to support the grant of summary judgment in favor of a plaintiff. The facts in this case support one of those rare instances where the plaintiff's circumstantial proof is convincing and the response of the defendant so weak that the inference of the driver's negligence is inescapable. Morejon, &c., v. Rais Construction Company, __ NY3d __ 2006 WL 122689. "

      "In opposing plaintiff's instant application, defendant contends that there exists an issue of fact as to whether the driver fell asleep at the wheel, yet defendant fails to offer any non-negligent explanation for the accident. It is plain that the sole and only cause of the accident was the driver's failure to keep his vehicle under proper control on a dry, lit road with only a slight curve and under conditions that were not likely to be considered dangerous. A court is not obliged to ferret out speculative issues when a defendant has failed to come forward with sufficient evidence to create a triable issue of fact."

      "Defendant further contends that plaintiff's motion is premature in that issues of comparative negligence as to the plaintiff passenger remain unknown, no deposition of the driver has been held and discovery is not complete. The suggestion by defendant that this motion cannot be defended because the driver has not been deposed is insufficient to deny this application. It is well settled that mere hope that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is not sufficient to deny summary judgment. "

      "Further, there is no issue of comparative fault on the part of plaintiff. The obligation of a passenger is to exercise reasonable care under the circumstances. A passenger is not required to warn the driver of every potential hazard and where a passenger may be found to be at fault, there was conduct on the part of the driver of which the passenger was aware and which might have imposed upon the passenger a duty to alert or admonish the driver.  There is an absence of evidence that any failure by plaintiff to exercise reasonable care for her safety was a substantial factor in bringing about the accident. "

      "Accordingly, the Court finds that the uncontroverted facts clearly establish that plaintiff was not negligent and that the negligence of the driver was the cause of the accident. Plaintiff's motion pursuant to CPLR §3212 on the issue of liability only is thus granted."

      "Defendant Hann seeks summary judgment against defendant Lawrence H. Schiffman based on its lease agreement with that defendant that contains an indemnification provision in which Schiffman indemnifies Hann against any and all claims arising out of, inter alia, the use or operation of the vehicle. The lessee was also required to and did name the lessor as an additional insured on his liability insurance policy. However, the submission by Hann indicates that only the lessee is named as an insured and Hann is designated as a lienholder. "

      "The lessee first claims that his rental agreement is not admissible because it fails to comport with CPLR §4544, which requires contracts to be clear and legible or not less than eight points in depth or five and one-half points in depth for upper case type. This provision must be read in conjunction with CPLR § 105 (t) which specifically defines how type size is to be determined. In support of his contention the lessee has submitted an affidavit of an expert in the printing industry which concludes that the type size in the auto lease here is seven points. "

      "To be sure, the evidentiary prohibition against documents not comporting with the requirement of the CPLR must be treated with deference to legislative intent, and where there is noncompliance defenses may be interposed. "

      "Here, however, the defendant Schiffman's expert fails to make a prima facie showing of statutory noncompliance because he fails to state that his measurements were made in accordance with the specifications of CPLR §105 (t), and he fails to state whether he worked from a photocopy or the actual document that was signed by defendant. An expert's conclusions must not be based on speculation and should provide specific data."

      "Given the statutory mandate of CPLR §105 (t), the defendant lessee has failed to raise an issue of fact sufficient to deny summary judgment on the basis of the type size of the auto lease agreement, and it is therefore appropriate to consider the merits of Hann's motion for summary judgment on its claim for indemnification. "

      "The right to indemnity arises in cases such as this which involve vicarious liability, and permits a party held legally liable to a plaintiff to shift the loss to another who was responsible for the wrong. The right may be based on an express contract, such as the auto lease in this case, or it may be implied based upon the law's notion of what is fair and proper. The latter, or implied indemnity, invokes the concept of restitution and avoids the unjust enrichment which would result from a party being held responsible solely by operation of law because of its relation to the actual wrongdoer. "

      "In the context of automobile rental agreements, a vehicle owner/lessor may recover in indemnity from a negligent user/lessee even absent an express contractual provision, but recovery is limited to the amount in excess of the minimum amount of insurance coverage required to be carried by automobile owners.  In the same context it has been held that the so called antisubrogation rule, invoked by defendant lessee does not preclude an automobile lessor from enforcing its rights to indemnification.  More recently, the right of contractual indemnification has been upheld even where, as here, the lessee was not the driver and was not actively negligent. Such right to contractual indemnification is similarly not barred by the so called 'antisubrogation rule.'" 

      "Finally, it is appropriate to grant summary judgment to Hann as to Schiffman at this juncture. Generally the right to indemnification must await a determination by the finder of fact or proof of negligence as a matter of law,  as well as payment by the party seeking indemnification." 

      "However, where the interests of justice and judicial economy dictate, a court may issue a conditional judgment of indemnification pending the outcome of the main action provided that there are no issues of fact regarding the potential negligence of the parties.  Here, there are no questions of fact to be resolved on the issue of the negligence of the parties. Both Hann and Schiffman, the owner/lessor and registrant/lessee respectively may be vicariously liable for the actions of the driver but, as between them, lessee Schiffman is answerable to Hann based on his contractual indemnity."

      "Hence Hann's motion for summary judgment against defendant Lawrence A. Schiffman based on the contractual indemnification provision of the lease agreement is conditionally granted, in an amount in excess of the minimum amount of liability insurance required to be carried."

      Comment:  This is an excellent exposition on the complex questions presented by leased-vehicle liability.

      Larry Rogak

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