GWOOD v. PROGRESSIVE WASTE

11825/2014.

64 Misc.3d 653 (2019)

104 N.Y.S.3d 856

2019 NY Slip Op 29180

GARFIELD GWOOD, Plaintiff, v. PROGRESSIVE WASTE SOLUTIONS OF LI, INC., et al., Defendants. DAWN McDONALD, as Administrator of the Estate of DWAYNE McDONALD, Deceased, Plaintiff, v. GARFIELD A. GWOOD et al., Defendants. MADDIA MONET BUNCH, Individually and as Administrator of the Estate of MARQUIS WILLIS, Deceased, and as the Mother and Guardian of the Property of LAILONNI DAISY WILLIS, an Infant, et al., Plaintiffs, v. GARFIELD A. GWOOD et al., Defendants.

Supreme Court, Kings County.

Decided June 14, 2019.


Attorney(s) appearing for the Case

Wilson Elser Moskowitz Edelman & Dicker LLP, New York City ( Jennifer L. Sciales of counsel), for IESI NY Corporation and others, defendants in the first, second and third above-entitled actions.

Rubenstein & Rynecki, Brooklyn ( Kliopatra Vrontos of counsel), for plaintiff in the first above-entitled action.

The Cochran Firm, New York City, for plaintiff in the second above-entitled action.

Peter DeFilippis & Associates, P.C., Dobbs Ferry , for plaintiffs in the third above-entitled action.

Picciano & Scahill, P.C., Bethpage, for Garfield A. Gwood, defendant in the second and third above-entitled actions.


OPINION OF THE COURT

Recitation in accordance with CPLR 2219(a) of the papers considered on the notice of motion of defendants Progressive Waste Solutions of LI, Inc. (hereinafter PWSLI), IESI NY Corporation (hereinafter IESI) and Roberto Venditti (collectively as action No. 1 defendants), under motion sequence No. 11, filed on September 5, 2018, for an order seeking, among other things, dismissal of all causes of action asserted against them pursuant to CPLR 3212. The instant motion is opposed by plaintiff Garfield Gwood.

Background

On August 12, 2014, Gwood commenced the instant action for damages for personal injuries under index No. 11825/2014 (hereinafter action No. 1) against the action No. 1 defendants by filing a summons and complaint with the Kings County Clerk's Office. On October 24, 2014, the action No. 1 defendants interposed an answer with counterclaims.

Gwood's action No. 1 complaint contains 50 allegations of fact in support of two causes of action for damages for personal injury and damage to property. Gwood's complaint and deposition transcript allege the following salient facts. On July 9, 2014, Gwood was driving a vehicle on Utica Avenue towards its intersection with Avenue D with a green traffic light in his favor. At the same time, Venditti, an employ of IESI, was operating a garbage truck owned by PWSLI and IESI and was traveling on Utica Avenue in the opposite direction. At some point, Venditti negligently made a left-hand turn across Gwood's lane of travel and collided with Gwood's vehicle (hereinafter the subject collision). The subject collision caused Gwood to sustain serious personal injury and property damage.

There is no dispute that at the time of the accident Marquis Willis and Dwayne McDonald were passengers in Gwood's vehicle. There is also no dispute that Gwood pleaded guilty to driving while intoxicated and causing the death of Marquis Willis and Dwayne McDonald by the subject collision.

The action No. 1 defendants interposed an answer containing 10 affirmative defenses and two counterclaims. On April 23, 2019, the action No. 1 defendants withdrew their counterclaims.

On April 8, 2015, the estate of Dwayne McDonald (hereinafter the McDonald estate) commenced an action under index No. 4257/2015 (hereinafter action No. 2) against Gwood, IESI, and Venditti (collectively as action No. 2 defendants).

On February 16, 2016, the estate of Marquis Willis and his distributees (hereinafter the Willis estate) commenced an action under index No. 501865/2016 (hereinafter action No. 3) against Gwood, Venditti, IESI, IESI Corporation, PWSLI, Progressive Waste Solutions, Ltd., Progressive Waste Solutions TS of LI Inc., and John Does 1-5.

By order dated May 27, 2016, the court joined action Nos. 1, 2 and 3 for the purposes of trial.

On February 8, 2018, the Willis estate filed a notice of motion, under motion sequence No. 2 in action No. 3, for an order: (1) granting summary judgment in their favor pursuant to CPLR 3212 against the action No. 3 defendants; (2) for a trial on damages; and (3) granting summary judgment pursuant to CPLR 3212 and Insurance Law § 5102(d) as Willis' death satisfies the "serious injury" requirement of the Insurance Law.

On March 9, 2018, defendants Venditti and IESI filed a notice of motion under motion sequence No. 2 in action No. 2, for an order pursuant to CPLR 3212 granting summary judgment in their favor and dismissing all causes of action against them.

On March 9, 2018, defendants Venditti, IESI, IESI Corporation, Progressive Waste Solutions of LI, Inc., and Progressive Waste Solutions TS of LI Inc. (hereinafter collectively as the garbage truck defendants) jointly filed a notice of motion, under motion sequence No. 3 in action No. 3, for an order granting summary judgment on the issue of liability in their favor pursuant to CPLR 3212 and dismissing the complaint.

On November 13, 2018, these motions, including the instant motion, were orally argued on the record. By decision and order, dated November 13, 2018, the court reserved decision on the instant motion by the action No. 1 defendants for summary judgment. The remaining motions were decided as follows.

Action No. 2 Decision and Order

Defendants Venditti and IESI's motion for summary judgment in their favor in action No. 2 was denied for failure to make a prima facie showing of entitlement. In particular, the court found that Venditti contributed to the accident by making an unsafe left turn across the path of the Gwood's vehicle in violation of Vehicle and Traffic Law § 1141. The court further found that Venditti was operating the garbage truck with the permission of its owner IESI and, therefore, IESI was also liable pursuant to Vehicle and Traffic Law § 388. The action No. 2 plaintiff withdrew its cause of action for loss of support.

Action No. 3 Decision and Orders

The Willis estate made a motion for summary judgment in their favor on the issue of liability as against all action No. 3 defendants and for partial summary judgment finding that Willis' death satisfied the "serious injury" requirement of Insurance Law § 5102(d).

There was no dispute that Venditti operated the garbage truck within the scope of his employment with IESI. Consequently, IESI and IESI Corporation were also liable pursuant to Vehicle and Traffic Law § 388 and vicariously liable as Venditti's employer.

The Willis estate's motion was granted in part and denied in part. It was granted on the issue of liability as against Venditti and Gwood in that both were negligent in the operation of their respective vehicles. Venditti violated Vehicle and Traffic Law § 1141 by making an unsafe left turn in front of opposing traffic. Gwood pleaded guilty to vehicular manslaughter, a violation of Penal Law § 125.13, and admitted to driving while intoxicated and causing the death of two people by the subject collision. By his admission and by applying the principles of collateral estoppel Gwood was liable for the subject collision that resulted in the death of Marquis Willis. However, the apportionment of fault between Venditti and Gwood is to be resolved by a trial jury. The Willis estate's motion was also granted pursuant to Vehicle and Traffic Law § 388 against IESI as the owner of the garbage truck operated by Venditti. Neither Venditti, Gwood, IESI Corporation or IESI raised a triable issue of fact.

The Willis estate's motion for summary judgment on the issue of liability was denied as against Progressive Waste Solutions of LI, Inc., Progressive Waste Solutions, Ltd. and Progressive Waste Solutions TS of LI Inc. for failure to make a prima facie showing of entitlement.

The garbage truck defendants' motion for summary judgment dismissing the complaint as asserted against each of them was denied for the following reasons.

First, they failed to establish that Gwood was the sole proximate cause of the collision and that they were free of comparative fault. Second, they failed to establish that Marquis Willis contributed to Gwood's intoxication or that he was an active participant in a drag race. Finally, they failed to establish that Marquis Willis experienced no conscious pain and suffering or pre-impact terror before his death.

Motion Papers

The action No. 1 defendants' motion consists of a notice of motion, an affirmation by counsel and 18 annexed exhibits labeled A to R. Exhibit A is a copy of the summons, complaint and answer with counterclaims for action No. 1 commenced by Gwood. Exhibit B includes a copy of the summons and verified complaint in action No. 2 commenced by the McDonald estate as well as the verified answer jointly filed by IESI and Venditti. Exhibit C is a copy of the summons and verified complaint in action No. 3 commenced by the Willis estate and also includes the verified answer of the garbage truck defendants. Exhibit D is a joint trial order dated May 27, 2016. Exhibit E is Gwood's bill of particulars in action No. 1. Exhibit F is a preliminary conference order dated September 29, 2016. Exhibit G is a compliance conference order dated March 17, 2017. Exhibit H is a copy of the deposition testimony of Gwood, dated March 30, 2017. Exhibit I is a copy of the deposition testimony of Venditti, dated June 6, 2017. Exhibit J is described as a selection of certified records from the New York District Attorney in response to defendants' FOIL request. Exhibit K is described as a copy of certified records from the New York City Police Department pursuant to court-ordered subpoena. Exhibit L is Gwood's criminal allocution transcript. Exhibit M is an order of the court dated January 9, 2018. Exhibit N is described as a copy of the final conference order in action No. 1. Exhibit O is a copy of the action No. 1 note of issue dated August 16, 2018. Exhibit P is a copy of the affidavit of defendants' expert, Robert P. Sinnaeve, a traffic accident reconstructionist. Exhibit Q is a copy of the affidavit of defendants' expert, John A. Desch, a professional engineer (P.E.) and accident reconstructionist. Exhibit R is a DVD disc purported to be video surveillance.

Gwood's opposition papers consist of an affirmation of counsel and three annexed exhibits labeled 1 to 3. Exhibit 1 is a copy of the affidavit in opposition of Nicholas Bellizi, P.E., from the action No. 3 plaintiff's, the Willis estate. Exhibit 2 is described as a video. Exhibit 3 is a copy of the deposition testimony of Detective Corey Fenley, dated September 15, 2017.

The action No. 1 defendants' reply papers consist of an affirmation of counsel and three annexed exhibits labeled AA to CC. Exhibit AA is a copy of the affidavit of defendants' expert, John A. Desch, a professional engineer and accident reconstructionist. Exhibit BB is a copy of the affidavit of defendants' expert Robert P. Sinnaeve, a traffic accident reconstructionist. Exhibit CC is a copy of an affidavit of defendants' expert, Michael M. Baden, M.D., a forensic pathologist.

Law and Application

The action No. 1 defendants seek dismissal of Gwood's claims against them pursuant to CPLR 3212 on several grounds. First, they seek dismissal on the basis that Gwood's claims are barred in accordance with the Barker/Manning rule and by applying the principles of collateral estoppel. Second, they seek dismissal of the complaint on the basis that Gwood was the sole proximate cause of the subject collision.

Sole Proximate Cause

The action No. 1 defendants based their contention that Gwood was the sole proximate cause of the subject collision on the opinion of two accident reconstruction experts, namely John A. Desch and Robert P. Sinnaeve. Desch averred that he was a professional engineer and Sinnaeve averred that he was a certified action reconstructionist. Both offered their respective opinion that Gwood was speeding at the time of the subject accident and that Venditti was not negligent in causing of the subject collision. The court rejected both opinions because each one was based on a review and an interpretation of several video images of the purported collision, only one of which was provided to the court and none of which were authenticated. Accordingly, their respective opinions lacked any evidentiary foundation.

Barker/Manning Rule

The Barker/Manning rule is derived from two Court of Appeals decisions, namely, Barker v Kallash (63 N.Y.2d 19 [1984]) and Manning v Brown (91 N.Y.2d 116 [1997]). These decisions articulated a policy prohibiting recovery for those who seek compensation under the law for injuries resulting from their own acts when they involve a substantial violation of the law.

In the Barker case, the Court of Appeals addressed the question of whether the 15-year-old plaintiff, who was injured while constructing a pipe bomb, could maintain a tort action against the nine-year-old defendant who allegedly sold the firecrackers from which the plaintiff's companions extracted the gunpowder used to construct the bomb. The trial court granted summary judgment dismissing the cause of action against the defendant and his parents for alleged negligent supervision. The Appellate Division affirmed. The Court of Appeals granted the plaintiff leave to appeal.

The Court of Appeals affirmed the dismissal of the plaintiff's complaint upon the public policy consideration that the courts should not lend assistance to one who seeks compensation under the law for injuries resulting from his own acts when they involve a substantial violation of the law. The Court further articulated that a complaint should not be dismissed merely because the plaintiff's injuries were occasioned by a criminal act. Rather, the Court found that preclusion was required only where the plaintiff's injuries were a direct result of a serious violation of the law involving hazardous activities which were not justified under the circumstances. Similarly, in the Manning case, the Court of Appeals addressed the question of whether a passenger injured in an automobile accident while knowingly riding in a stolen vehicle could maintain a tort action against the owners of the vehicle and driver. The trial court granted defendants' motion for summary judgment dismissing plaintiff's complaint against them. The Appellate Division affirmed and the Court of Appeals granted the plaintiff leave to appeal.

The Court of Appeals held, among other things, that the plaintiff passenger's participation in the criminal activity of joyriding was a serious violation of law, such that public policy precluded the plaintiff from maintaining an action against the driver. The Court reasoned that, as a matter of public policy, where plaintiff had engaged in unlawful conduct, the courts will not entertain suit if plaintiff's conduct constitutes a serious violation of law and the injuries for which plaintiff seeks recovery are the direct result of a violation involving hazardous activities which were not justified under the circumstances.

Conversely in the matter of Alami v Volkswagen of Am. (97 N.Y.2d 281 [2002]), the Court of Appeals addressed the issue of a motor vehicle driver who was killed when the automobile he was operating, in an intoxicated condition, collided with a utility pole. The administrator of the estate of the deceased motorist sued Volkswagen, the manufacturer of the Jetta vehicle, alleging that the vehicle's defective design had enhanced the motorist's injuries resulting in his death. The manufacturer moved for summary judgment, alleging that motorist's intoxication at the time of accident barred suit. The Supreme Court granted the motion. The administrator appealed, and the Supreme Court, Appellate Division, affirmed. After granting permission to appeal, the Court of Appeals held that the fact that the motorist was legally intoxicated at the time of accident did not operate on grounds of public policy to bar the administrator's crashworthiness claim.

The Court of Appeals reasoned that if Volkswagen did defectively design the Jetta as asserted by plaintiff's expert, it breached a duty to any driver of a Jetta involved in a crash regardless of the initial cause. Plaintiff's expert demonstrated that but for the defective design of the vehicle, the decedent's injuries would have been much less severe and would not have been fatal. The Court of Appeals further found that plaintiff did not seek to profit from her deceased husband's intoxication, rather she sought only that Volkswagen honor its well-recognized duty to produce a product that did not unreasonably enhance or aggravate a user's injuries. Therefore, the duty she sought to impose on Volkswagen originated not from her husband's act, but from Volkswagen's obligation to design, manufacture and market a safe vehicle.

In the case at bar, Gwood was driving while intoxicated at the time of the subject collision. He pleaded guilty to vehicular manslaughter, a violation of Penal Law § 125.13, wherein he admitted to driving while intoxicated and actually causing the death of his two passengers by the subject collision. Therefore, in light of the public policy emanating from the Barker/Manning rule and its narrow application by the Court of Appeals, this court must determine whether or not, in effect, to "close the courthouse doors" to Gwood, barring his ability to seek redress for his claims of injury.

Gwood's injuries were directly and proximately caused by his decision to drive a vehicle while intoxicated. Gwood placed his passengers, and every other driver or pedestrian in his path at great risk of death or serious physical injury. There is no dispute that his decision and the ensuing collision, which allegedly injured him and killed his two passengers, constituted a serious violation of the law involving a hazardous activity which was not justified under the circumstances. Notwithstanding the Alami case, there is no authority for the proposition that driving while intoxicated is not a serious violation of law. Nor is there any reasonable or rational view by which one could find that Gwood's decision to drive while intoxicated was justified under these circumstances.

Unlike the plaintiff in the Alami v Volkswagen of Am. case, Gwood may not rationally claim that his injuries were not directly and proximately caused by his crime. While Gwood may properly claim that Venditti's negligent operation of his vehicle contributed to the collision and his injuries, Gwood's claim is distinguishable from the claims advanced in the Alami case.

In the Alami case, the manufacturer's defective design of the vehicle operated by the plaintiff's decedent allegedly put any driver of the vehicle in jeopardy of enhanced injury, whether sober or intoxicated, such that a minor fender bender could and allegedly did result in a fatality. Furthermore, the Alami plaintiff's claim was directly connected to the manufacturer's duty to design a reasonably safe vehicle for all foreseeable users of its vehicle.

Gwood's claim, on the other hand, originates from and is inextricably bound to his own felonious conduct. Accordingly, the action No. 1 defendants' motion to dismiss Gwood's claims against them pursuant to the Barker/Manning rule is granted.

Collateral Estoppel

There is no dispute that Gwood pleaded guilty to vehicular manslaughter. Where a criminal conviction is based upon facts identical to those in a related civil action, the plaintiff in the civil action can successfully invoke the doctrine of collateral estoppel to bar the convicted defendant from relitigating the issue of liability (Hartman v Milbel Enters., Inc., 130 A.D.3d 978 [2d Dept 2015]). The party seeking the benefit of collateral estoppel bears the burden of proving that the identical issue was necessarily decided in the prior proceeding, and is decisive of the present action (id.). The party against whom preclusion is sought bears the burden of demonstrating the absence of a full and fair opportunity to contest the prior determination (id.).

Gwood, who is currently serving a prison sentence of 4 to 12 years, does not dispute his liability for causing the subject collision. Rather, he claims that Venditti's own negligence also contributed to causing the subject collision. By decision and order issued November 13, 2018, the court has already found that Venditti was negligent in the operation of the garbage truck. However, in light of the foregoing, Gwood's action for damages for his own personal injuries caused by the subject collision is dismissed. Furthermore, the court need not address the action No. 1 defendants' other grounds for dismissal of Gwood's complaint as asserted against them.

Conclusion

The joint motion of Progressive Waste Solutions of LI, Inc., IESI NY Corporation, and Roberto Venditti for an order pursuant to CPLR 3212 dismissing the complaint of Garfield Gwood is granted.


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