In this action, the plaintiff Lennet Adenekan (Adenekan) was crossing a city street within a crosswalk, when she was struck by an MTA bus driven by defendant Jose Molano (Molano), and owned by his employer, defendant New York City Transit Authority (NYCTA). Adenekan suffered injuries to her left foot that required several surgeries and an eventual partial amputation. Adenekan's daughter Jasmine, who was walking with Adenekan at the time of the accident and witnessed the accident, is also a plaintiff.

Plaintiffs' previous motion for summary judgment on the issue of liability was denied by this Court on September 29, 2009. In that order, the Court found that a question of fact remained concerning Adenekan's comparative negligence. Plaintiffs now move for leave to renew as governed by CPLR 2221(e), stating that new evidence discovered since the previous motion provides unequivocal proof that defendant is entirely liable for the accident. Upon renewal, plaintiffs ask this Court to grant plaintiffs' motion for summary judgment on the issue of liability.

A motion for leave to renew must be based upon new facts not offered on the prior motion (or based upon a change of law since the prior motion), that would change the prior determination, and the movant must state a reasonable justification for the failure to present such facts on the prior motion (see McKinney's CPLR 2221(e); Yarde v. New York City Transit Authority, 4 AD3d 352 [2nd Dept. 2004]). A motion for leave to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation (Renna v. Gullo, 19 AD3d 472 [2nd Dept. 2005]). The requirement that a motion for renewal must be based upon newly-discovered facts is a flexible one, and a court, in the interest of justice, has discretion to grant renewal even upon facts known to the moving party at the time of the original motion (Daniel Perla Associates v. Ginsberg, 256 AD2d 303 [2nd Dept. 1998]). [*2]Where the additional evidence offered would not have warranted a different outcome on the underlying motion, the motion for leave to renew is properly denied (Amodeo v. State, 257 AD2d 748 [2nd Dept. 1999]). Additionally, leave to renew is not warranted where "the factual material adduced in connection with the subsequent motion is merely cumulative with respect to the factual material submitted in connection with the original motion" (City of New York v. St. Paul Fire and Marine Ins. Co., 21 AD3d 982 [2nd Dept. 2005]).

On the plaintiffs' original motion for summary judgment on the issue of liability, the Court concluded that there was a question of fact as to whether Adenekan contributed in part to the accident. Eyewitness evidence indicated that, at the time that Adenekan was struck by the bus, she was looking to her right, i.e., away from the bus. This question of fact precluded this Court from granting summary judgment in favor of the plaintiffs.

On this motion for renewal, plaintiffs offer additional evidence that was not in their possession prior to the original motion for summary judgment. Plaintiffs assert that this evidence is proof certain that Adenekan was not at all responsible for the accident. This additional evidence consists of photos taken by a NYCTA investigator at the scene of the accident, a NYCTA investigative report distributed as an internal memorandum, and defendant/driver Molano's deposition. Plaintiffs and defendants argue as to the admissibility of this evidence, but it is the Court's position that, arguendo, even if all of this evidence is admissible, it would still not change this Court's prior determination that there remains a question of fact as to Adenekan's comparative negligence.

First, contrary to plaintiffs' assertions, the photos do not establish conclusively the exact location where Adenekan was struck. Plaintiffs rely on these photos to prove that Adenekan was already halfway across the intersection when she was struck by the bus, and assert that, therefore, regardless of where she was looking, she could not have avoided the accident and Molano should have seen her in the middle of the crosswalk. However, the photos show the bus, but, by all accounts, it has been established that Molano moved the bus anywhere from one to several feet forward to free Adenekan's foot from underneath the tire, so the position of the bus in the photographs is not an accurate indication of location of impact in the crosswalk. The photos also do not show Adenekan in the street, as they were taken after she had been removed from the scene by paramedics. The photos show only blood stains and Adenekan's flip flop sandals close to, but before, the middle of the intersection. These can be general indications of where Adenekan lay in the street, but are not conclusive as to the exact point in the crosswalk where she was hit. The pooled blood does not indicate the point of impact, but rather where Adenekan lay bleeding; it is unknown if Adenekan was moved by any of the gathered crowd or by the paramedics, or if she was dragged forward at all by the bus after being hit. Also, the sandals do not conclusively indicate the location of impact, as they could likely have been removed from Adenekan's feet after the accident and placed where they appear in the photo. Thus, the photos are not proof certain of where in the crooswalk Adenekan was struck by the bus.

Second, although the photos may not have been known to plaintiffs at the time of the original motion, the information that they offer is not new — it can be gleaned from other evidence that was known at that time and already before this Court. Specifically, the accident report prepared by Erik Rodriguez, a Surface Line Dispatcher for defendant NYCTA, already attests to the information in the photos. Rodriguez was a block away from the accident site when [*3]the accident occurred. Investigating accidents is one of his job functions and his report, prepared during the normal course of business, was included with Rodriguez's affidavit on the original motion. Rodriguez conducted measurements at the scene of the accident and his report indicates the position of the bus in the street in relation to the curb from which Adenekan stepped to enter the crosswalk. However, as previously discussed, the final resting place of the bus does not indicate the point of impact, as the bus was moved forward by Molano after striking Adenekan. The report also does not give measurements of exactly where the plaintiff was lying in the crosswalk. Rodriguez has indicated in his sworn affidavit that he saw the plaintiff lying on the street. However, as mentioned in his report, she was removed from the scene rather quickly. Although Rodriguez drew an icon on the diagram in his report indicating where Adenekan lay, he did not supplement this with any measurements, as he did for the location of the bus. Additionally, the diagram is not drawn to scale, so the distance cannot be determined. And, as previously discussed, the location where Adenekan lay in the crosswalk is not necessarily the location where she was hit. The only conclusive evidence offered by the photos — the positioning of the bus after it was moved off of Adenekan's foot — was already in the record and before this Court. This allegedly new photographic evidence, therefore, is not novel, but merely cumulative, evidence and thus, does not warrant renewal. (City of New York v. St. Paul Fire and Marine Ins. Co., 21 AD3d 982 [2nd Dept. 2005]).

Third, plaintiffs introduce an investigative report prepared as an internal memorandum for NYCTA (referred to as the "Dagis Report") and assert that the statements contained therein indicate total liability on the part of defendant Molano. These statements include, "the B/O (bus operator) failed to scan the intersection properly," "the B/O failed to anticipate the hazards that the intersection posed," "the B/O failed to yield to the pedestrians in the crosswalk," "the B/O failed to maintain control of the bus, by not stopping prior to contact with the pedestrian," and "the Safety & Training Division recommends that the B/O be held accountable for this accident." However, these are conclusions drawn based upon NYCTA's own internal standards which are higher than those imposed by common law. Although factual statements and descriptions that do not rely on internal rules have been held admissible, conclusions based upon internal standards that impose higher standards than law have been held inadmissible (Wimbish v. New York City Transit Authority, 305 AD2d 586 [2nd Dept. 2003]); Rivera v. New York City Transit Authority, 77 NY2d 322 [1991]). Furthermore, the factual findings of this internal memorandum merely support the information contained in Rodriguez's report, which was already seen by this Court. The Dagis Report introduces no new evidence.

In any event, none of the additional evidence offered by plaintiffs, including Molano's deposition, introduces any information to warrant a change of this Court's prior denial of summary judgment on the issue of liability (Amodeo v. State, 257 AD2d 748 [2nd Dept. 1999]), because there may still be comparative negligence on the part of Adenekan. In support of their position, plaintiffs cite Voskin v. Lemel, in which summary judgment was granted in favor of a pedestrian when the defendant motorist failed to yield the right of way to the pedestrian crossing the street within a crosswalk, and with the "WALK" signal in his favor (Voskin v. Lemel, 52 AD3d 503 [2nd Dept. 2008]). Although plaintiffs claim that Voskin is instructive, there is a basic factual difference: at no time in that case is it suggested that the plaintiff was not looking where he was going. Thus, Voskin is not instructive because there was no question of negligence on the [*4]part of the plaintiff. Although the Court recognizes that the fact that Adenekan was looking to the right when she was hit does not mean that she never looked to the left, the Court nonetheless finds that this question of fact concerning comparative negligence must be determined by a jury. Therefore, the Court would not grant summary judgment upon renewal, and holds to its original determination as supported by Thoma v. Ronai, a Court of Appeals decision that affirmed denial of a plaintiff's motion for summary judgment in a crosswalk accident in which the plaintiff "may have been negligent in failing to look to her left while crossing the intersection" (quoting Thoma v. Ronai, 82 NY2d 736 [1993]). The Court's prior determination does not change because plaintiff still fails to meet her burden of establishing a prima facie entitlement to judgment on the issue of liability. Accordingly, renewal is denied.

The foregoing constitutes the decision and Order of the Court.

_______________________

Robert J. Miller

J.S.C.

September 7, 2010