2019 WL 1442097
Supreme Court, Appellate Division, First Department, New York.
Darnley CLARKE, Plaintiff–Appellant,
AMERICAN TRUCK AND TRAILER, INC., et al., Defendants,
National Freight, Inc., Defendant–Respondent.
ENTERED: APRIL 2, 2019
Background: Truck driver brought personal injury action against trucking company, alleging that company overloaded driver’s trailer causing the trailer to buckle and break apart, which resulted in truck crashing into a concrete divider. The Supreme Court, Bronx County, Julia I. Rodriguez, J., 2017 WL 4777608, granted company’s motion for summary judgment. Driver appealed.
Holdings: The Supreme Court, Appellate Division, held that:
 general counsel of nonparty had a lack of personal knowledge of trucking company’s activities, and thus counsel’s affidavit was insufficient to establish prima facie case entitling trucking company to summary judgment, and
 distribution services agreement between product owner and distribution company was not admissible.
Reversed and remanded.
West Headnotes (2)
General counsel to nonparty company had a lack of personal knowledge of trucking company’s activities, and thus counsel’s affidavit was insufficient to establish prima facie case entitling trucking company to summary judgment, in personal injury action brought by truck driver against trucking company after company allegedly overloaded driver’s trailer, which caused accident, although counsel stated that he provided management and legal services to nonparty and trucking company; counsel did not work for trucking company, and counsel stated basis for his claimed knowledge of which entity was responsible for distribution services at time of accident was him having been advised by unnamed person or persons. N.Y. CPLR § 3212(b).
Cases that cite this headnote
Distribution services agreement between product owner and distribution company was not admissible, in establishing prima facie case entitling trucking company to summary judgment in personal injury action brought by truck driver against trucking company after company allegedly overloaded driver’s trailer with product, which caused accident, although agreement was attached to affirmation of trucking company’s attorney, where distribution document was not authenticated. N.Y. CPLR § 4518(a).
Cases that cite this headnote
Attorneys and Law Firms
G. Wesley Simpson, P.C., Brooklyn (G. Wesley Simpson of counsel), for appellant.
Abrams, Gorelick, Friedman & Jacobson, LLP, New York (James E. Kimmel of counsel), for respondent.
Renwick, J.P., Manzanet–Daniels, Tom, Kahn, Gesmer, JJ.
*1 Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered on or about September 21, 2017, which granted defendant National Freight, Inc.’s motion for summary judgment dismissing the complaint as against it, unanimously reversed, on the law, without costs, and the matter remanded for further proceedings, including determination of those issues not previously reached by the motion court.
This is an action for personal injuries arising from a motor vehicle accident. Plaintiff, a truck driver, alleges that employees of defendant National Freight, Inc. negligently loaded his trailer with codefendant Ocean Spray Cranberry, Inc.’s products, placing more goods onto it than it was designed to carry. Plaintiff further alleges that this caused the trailer to buckle and break apart, as a result of which he lost control of his vehicle and it crashed into a concrete divider. Finally, he alleges that he suffered serious injury from the incident.
National Freight failed to make out a prima facie case entitling it to summary judgment and dismissal of the complaint for two reasons. First, defendant offered, and the motion court relied on, the affidavit of Scott Brucker, general counsel to nonparty NFI Management Services. Brucker states that NFI Management Services provides “management and legal services” to National Freight and nonparty National Distribution Centers LLC. However, Brucker’s affidavit was insufficient to establish that it was National Distribution Centers, and not National Freight, which provided distribution services for Ocean Spray at the subject distribution facility when the accident occurred. Although Brucker averred that he was “fully familiar with the corporate structure, governance and legal filings made and/or performed on behalf of both companies,” he does not work for National Freight. Accordingly, he has no personal knowledge of National Freight’s activities at the relevant times. Indeed, he admits as much when he states that the basis for his claimed knowledge of which entity was responsible for providing distribution services at the subject facility was his having been so “advised” by an unnamed person or persons. Accordingly, his affidavit is insufficient to establish defendant’s entitlement to summary judgment (CPLR 3212[b]; Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718  ).
Second, defendant offered, and the motion court relied on, a copy of a distribution services agreement between Ocean Spray and National Distribution Centers, attached to defendant’s attorney’s affirmation. However, this document was not authenticated (CPLR 4518[a] ). Accordingly, it was not admissible and was not an appropriate basis on which to grant summary judgment (Zuckerman, 49 N.Y.2d at 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).
Since defendant did not make out a prima facie case for summary judgment in its favor, we need not address the arguments about the sufficiency of the opposition papers submitted by plaintiff.
*2 Because the motion court granted summary judgment on the issue discussed above, it did not reach defendant’s arguments based on the causation of the accident, and that plaintiff’s injury did not constitute a “serious injury” under Insurance Law § 5102(d). We now remand to the motion court to address those issues.
— N.Y.S.3d —-, 2019 WL 1442097, 2019 N.Y. Slip Op. 02448