Horowitz v. Kevah Konner, Inc. , 67 A.D.2d 38 ( 1979 )

OPINION OF THE COURT

Murphy, P. J.

Plaintiff Horowitz submitted an affidavit of merit in support of her motion for summary judgment in this negligence action. In that affidavit, plaintiff states that on December 20, 1975, she was a passenger in a chartered bus owned by defendant Kevah Konner, Inc., and operated by defendant Bowen. At about 10:45 p.m., the bus was proceeding in a southerly direction on the New York State Thruway. At that time, the Thruway was covered with snow. The plaintiff avers that the bus suddenly left the extreme right hand lane, crossed the other southerly lanes and turned over in the center mall area. Plaintiff emphasizes that defendant Bowen later pled guilty to driving the bus at a speed greater than was reasonable and prudent under the snowy conditions. A certificate of conviction under subdivision (a) of section 1180 of the Vehicle and Traffic Law is also included in the moving papers.

The doctrine of res ipsa loquitur must be applied under the facts of this case for two distinct reasons. First of all, since the plaintiff was a passenger in a carrier, it was incumbent upon the carrier to come forward with a reasonable explanation for the occurrence (Plumb v Richmond Light & R. R. Co., 233 NY 285, 289). Secondly, in view of the fact that the bus overturned in the center mall area, it was necessary for the defendants to advance a satisfactory explanation for the incident. (Pfaffenbach v White Plains Express Corp., 17 NY2d 132, 135.) In addition, defendant Bowen’s plea of guilty was an admission suggesting that he was operating the bus in a negligent manner. (Ando v Woodberry, 8 NY2d 165.) Hence, the plaintiff established her prima facie case through (1) the evidentiary value of her own affidavit, (2) the operability of the doctrine of res ipsa loquitur, and (3) defendant Bowen’s admission as found in his plea of guilty.

The opponent of a properly made motion for summary judgment must present evidentiary facts sufficient to raise a triable issue of fact. (Freedman v Chemical Constr. Corp., 43 NY2d 260, 264.) As is noted in the dissenting opinion, an affidavit was not submitted by defendant Bowen because he could not be located by defense counsel. The latter stresses that "this motion had already been scheduled twice before and, through the courtesy of the plaintiff’s attorney, it was adjourned to the current date. In obtaining the consent adjournments, this office, at counsel’s request, agreed not to request any further adjournments. Therefore, under the circumstances, in lieu of an affidavit by Mr. Bowen, I am herewith submitting a copy of the recorded statement taken by a Fireman’s Fund investigator on February 3, 1976.” In his affirmation in opposition, defense counsel does not request that plaintiff’s motion for summary judgment be denied until the trial of this action in order to afford him the opportunity of locating defendant Bowen. Undoubtedly counsel did not make this request since, under the admitted terms of his stipulation with plaintiff’s attorney, he agreed that no further adjournments would be had. Thus, in both his affirmation and his brief, defense counsel addresses himself to the merits of the evidence presented. Even if defense counsel had not entered into the subject stipulation, the defendant is under an obligation to maintain communication with his attorney and insurer in this proceeding. Plaintiff should not be forced to wait until trial simply because the defendant chooses to secrete himself and to default in the defense of this action. Of course, the hearsay affirmation submitted by defense counsel has no evidentiary significance (Stara Plumbing & Heating Co. v Kelly Contr. Corp., 61 AD2d 950).

The remaining evidentiary question is whether this court should consider the transcript of an alleged conversation between an insurance investigator and defendant Bowen before the latter’s disappearance. The transcript itself is unsigned. The investigator has not submitted an affidavit in opposition to the motion nor has he in any way certified the correctness of the transcript. There is no certification from the transcriber that the transcription of the conversation is accurate. There is no indication in the record that Bowen was under oath at the time the statement was given. Therefore, it may be fairly concluded that the statement, if actually given by Bowen, was not given under oath.

Since the insurance investigator did not confirm the accuracy, authenticity and reliability of the transcript, it cannot be considered on this motion for summary judgment. (Richardson, Evidence [10th ed], §§ 635-643; cf. Greenberg v Manlon Realty, 43 AD2d 968.) Even if the investigator had submitted an affidavit, the transcript must be disregarded for it is not signed (Pathmark Graphics v J. M. Fields, Inc., 53 AD2d 531, mot to dismiss app granted 40 NY2d 1093) nor verified (cf. Hayduk v Mahoney Motor Sales, 18 AD2d 703). In granting partial summary judgment in Pathmark, this court (including the dissenters herein) found (supra, p 531) that "Unsigned depositions and general denials in the pleadings do not suffice as proof requisite to defeat a motion for summary judgment.” The dissent now urges that we treat the unsigned, unverified, uncertified transcript in this proceeding differently from the unsigned depositions in Pathmark. We disagree and find that the principle enunciated in Pathmark, a nonnegligence case, to be equally controlling in this negligence proceeding. For that reason, we do not assign any evidentiary significance to the transcript.

Ordinarily, res ipsa loquitur satisfies a plaintiff’s duty of producing evidence sufficient to go to the jury. (Foltis, Inc. v City of New York, 287 NY 108, 120.) That fact in and of itself does not normally warrant nor require the granting of summary judgment to a plaintiff (Sacramona v Scalia, 36 AD2d 942, 943). However, the Court of Appeals noted that there may be cases where plaintiff’s prima facie proof is so convincing that the inference of negligence arising therefrom is inescapable if not rebuttted by other evidence. (Foltis, Inc. v City of New York, 287 NY 108, 121, supra.) Subsequently, the courts have granted summary judgment in certain res ipsa situations where the particular defendant totally failed to rebut the inescapable inference of negligence. (Colonial Sand & Stone Co. v Tracey Towing Line, 16 AD2d 645; Richard Equip. Corp. v Manhattan Ind. Contr. Co., 9 AD2d 691; Baroff v Becker, 197 F Supp 9; Silvern v Barbagallo, 195 NYS2d 32; see, generally, 97 ALR2d 522, Res Ipsa Loquitur — Directing Verdict.) In this proceeding, the defendants have totally failed to come forward with any competent proof to rebut the inescapable inference, established under the doctrine of res ipsa, that their negligence caused the plaintiffs injuries. In addition to the inescapable inference to be drawn under that doctrine, plaintiff has come forward with independent evidence of defendants’ negligence, i.e., Bowen’s plea of guilty

On the basis of the unchallenged evidence submitted by plaintiff, the order of the Supreme Court, New York County (Shainswit, J.), entered September 5, 1978, denying plaintiffs motion for summary judgment, should be reversed, on the law, the motion for partial summary judgment against both defendants should be granted on the issue of liability and the matter should be remanded for an assessment of damage, with costs.