Louella Wyatt,
TYIESHA WYATT, Individually and as Mother and Natural Guardian of SHAWN
WYATT, an Infant, Plaintiffs,
against
City of New York, NEW YORK CITY TRANSIT
AUTHORITY, ANTONIO C. ROBINSON, METROPOLITAN TRANSPORTATION
AUTHORITY, AND MTA BUS COMPANY, Defendants.
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161111/2013
For Plaintiffs:
Law Office of Ryan S. Goldstein, PLLC
By: Ryan S. Goldstein, Esq.
43 Westchester Square, Suite 2A
Bronx, NY 10461
(718) 239-0239
For defendants New York City Transit Authority, Antonio C. Robinson,
Metropolitan Transportation Authority, and MTA Bus Company:
Armienti, DeBellis, Guglielmo & Rhoden LLP
By: Danielle L. Tabankin, Esq.
39 Broadway, Suite 520 New York, NY 10006
(212) 809-7074
Michael D. Stallman, J.
In this action involving a motor vehicle accident, plaintiffs alleges that, on January
14, 2013, a bus bearing license plate M13688 rear-ended their vehicle on East 116th
Street between Park Avenue and Madison Avenue in Manhattan. It is undisputed that
plaintiffs Louella Wyatt and Shawn Wyatt were passengers in the vehicle, that the
vehicle was owned by Louella Wyatt and operated by non-party Rafael Price. Defendant
Antonio C. Robinson allegedly operated the bus.
Plaintiffs now move for summary judgment in their favor as to liability
against the New York City Transit Authority (NYCTA), Robinson, the Metropolitan
Transportation Authority (MTA), and MTA Bus Company, and for summary judgment
dismissing their counterclaim against Louella Wyatt. The NYCTA, Robinson, MTA, and
MTA Bus Company oppose the motion and cross-move for summary judgment
dismissing the action. Plaintiffs oppose the cross motion.BACKGROUND
According to a police
accident report, operator of Vehicle 1, the bus driver, was "Robinson, Antonio, C", and
the registered owner of the bus was "MTA Bus Company" at "341 Madison Avenue,
New York, NY 10017." (Tabankin Affirm., Ex G.) The police accident report states, in
pertinent part, "At T/P/O, oper. veh No.1 sts he was traveling W/B on E�116 St, Park to
Madison Ave on left lane — when veh # 2 stopped short — causing veh # 1
to rear end veh # 2. . . . Officer did not witness accident." (Id.)
On May 3, 2013, plaintiffs allegedly served a notice of claim upon the Metropolitan
Transportation Authority (MTA) at "341 Madison Avenue, New York, [*2]NY 10017." The notice of claim, which is addressed to the
MTA, City of New York, and New York City Transit Authority (NYCTA) states, in
relevant part,
"At approximately 4:30 PM on April 13, 2013, claimants, LOUELLA
WYATT and SHAWN WYATT, were a [sic] seat belted passengers in the
vehicle owned by LOUELLA WYATT and operated by RAFAEL PRICE a
2004 Toyota motor vehicle. At all times relevant, Ms. Wyatt's vehicle was traveling on
Westbound East 116th Street intersecting Park Avenue and Madison Avenue . . . . While
Ms. Wyatt's vehicle was stopped for traffic, her vehicle hit from the rear by a 2007 MCI
with license plate M13688 registered in the State of New York, being operated by a
Metropolitan Bus Company Employee, Antonio C. Robinson, in the course of his
employment, and owned by the METROPOLITAN TRANSPORTATION
AUTHORITY, CITY OF NEW YORK, NEW YORK, and NEW YORK CITY
TRANSIT AUTHORITY."
(Tabankin Affirm., Ex F.)
On December 2, 2013, plaintiffs commenced this action against the City of New
York, NYCTA, Robinson, and the MTA. (Goldstein Affirm., Ex B.) The complaint
alleges that Robinson was an employee of the MTA.
Based on date-time stamps on a copy of the pleadings, the City of New
York, NYCTA, and MTA were apparently served with the pleadings on December 5,
2013. (See Tabankin Affirm., Ex A.) According to an affidavit of service efiled
on December 26, 2013, defendant Robinson was purportedly served with the summons
and complaint on December 17, 2013, by substituted service upon a "Jane Doe" at "280
Fort Washington Avenue, Apt 45, New York, NY 10032", followed by a mailing by first
class mail to that address on December 18, 2013. (Tabankin Affirm., Ex J.)
The City apparently served an answer dated December 20, 2013. On March 9, 2014,
the City moved for summary judgment dismissing the complaint as against it, which was
granted by decision and order dated April 14, 2014.
While the City's motion for summary judgment was pending, plaintiffs
served a summons and amended complaint adding MTA Bus Company as a defendant on
March 25, 2014. (Goldstein Affirm., Ex C [amended complaint].) The amended
complaint alleges that Robinson "is an employee of Defendant, MTA, as well as MTA
Bus". (Id. ¶ 8.) On April 2, 2014, the NYCTA, MTA, and Robinson
apparently served an answer dated March 28, 2014 to the original complaint. (Tabankin
Affirm., Ex C.)
According to an affidavit of service efiled on May 2, 2014, defendant
Robinson was purportedly served with the summons and amended verified complaint on
April 12, 2014, by substituted service upon a "Jane Doe" at "280 Fort Washington
Avenue, [*3]Apt 45, New York, NY 10032", followed by
a mailing by first class mail to that address on April 15, 2014. (Tabankin Affirm., Ex J.)
The NYCTA, MTA, Robison, and MTA Bus Company apparently answered the
amended complaint and efiled the amended answer on May 28, 2014. (Tabankin Affirm.,
Ex E.) The amended answer asserts a counterclaim against Louella Wyatt for
comparative fault.
A preliminary conference has not yet been held in this action, due to the City's
summary judgment motion and the instant motion and cross motion.
I.
As a threshold matter, the Court
accepts the reply affirmation of Danielle L. Tabankin, Esq. dated September 30, 2014 in
support of defendants' cross motion, and the accompanying exhibits. Tabankin had
requested a two-week adjournment of the return date of the motion and cross motion,
scheduled September 17, 2014 to file a reply affirmation in support of the cross motion.
(NYSCEF Doc # 54.) However, it does not appear from court records that the Motion
Submissions Part considered or denied the application, and the motion and cross motion
were marked fully submitted on September 17, 2014. Tabankin efiled the reply
affirmation and accompanying exhibits on September 30, 2014. Given that there was no
written opposition to Tabankin's application for an adjournment, and there appears to be
no ruling on the application, the Court accepts Tabankin's reply affirmation and the
accompanying exhibits.II.
The
NYCTA, Robinson, MTA, and MTA Bus Company argue that the action should be
dismissed as to the NYCTA and MTA because the MTA Bus Company is the registered
owner of the bus at issue, and that Robinson is an employee of the MTA Bus Company.
As to Robinson and the MTA Bus Company, they contend that the amended
complaint adding the MTA Bus Company was a nullity because plaintiffs should have
obtained leave to amend from the Court, and that Robinson was never served with the
pleadings. Alternatively, they argue that plaintiffs did not serve a pre-suit demand upon
the MTA Bus Company, which they assert is a condition precedent to suit against the
MTA Bus Company and Robinson.A.
In support of their contention that the
MTA Bus Company is the registered owner of the bus at issue and that Robinson is an
employee of the MTA Bus Company, they submit from an affidavit from Donnie
Osbourne, an analyst employed by the MTA Bus Company, and an affidavit from
Robinson. (Tabankin Affirm., Exs H [Osbourne Aff.] and I [Robinson Aff].)
Osbourne states that the bus that Robinson was operating on April 13, 2013
was [*4]owned and maintained by the MTA Bus
Company. (Osbourne Aff. ¶ 5.) Annexed to Osbourne's affidavit is a copy of the
bus registration with the New York State Department of Motor Vehicles, which indicates
the registrant of the vehicle bearing plate M13688 is "MTA; Bus; Company."
(Id.) The address listed on the vehicle registration is "341 Madison Ave" "New
York, NY" (Id.)
Robinson avers that, on April 13, 2013, he was employed as a bus operator
for the Eastchester Depot of the MTA Bus Company, and that he was not an employee of
the NYCTA or MTA. (Robinson Aff. ¶¶ 2-3.)
Plaintiffs do not oppose dismissal as against the NYCTA and stipulate to the
dismissal. (Goldstein Reply Affirm. ¶¶ 4-5.) However, plaintiffs contend that
there are triable issues of fact as to whether the MTA owns the bus, and whether
Robinson is a MTA employee. Plaintiffs assert that, the MTA Bus Company denied the
amended complaint's allegations that it owned the bus and that Robinson was its
employee. They also claim that, on his Facebook page, Robinson listed his past
employment as "Metropolitan Transportation Authority (MTA)." (Goldstein Affirm., Ex
H.)
Plaintiffs fail to raise a triable issue of fact as to whether the MTA owns the
bus, or whether Robinson was a MTA employee. "It is well settled, as a matter of law,
that the functions of the MTA with respect to public transportation are limited to
financing and planning, and do not include the operation, maintenance, and control of
any facility." (Delacruz v
Metropolitan Transp. Auth., 45 AD3d 482, 483 [1st Dept 2007]; Towbin v
City of New York, 309 AD2d 505, 505, 765 N.Y.S.2d 242 [1st Dept 2003] ["the
action must be dismissed against defendant Metropolitan Transportation Authority for
the additional reason that it neither owns nor operates any buses"].)
The MTA's and MTA Bus Company's denials of the allegations of the
amended complaint do not compel a contrary result. The amended complaint alleges that
Robinson "is an employee of Defendant, MTA, as well as MTA Bus . . ." (Goldstein
Affirm., Ex C [amended complaint] ¶ 8). Given that the single sentence contained
multiple allegations, the NYCTA, MTA, Robinson, and MTA Bus Company were
permitted to deny the entire sentence, "even if the sentence contains some facts that
defendant does not dispute." (Barr, Altman, Lipshie, & Gerstman, New York Civil
Practice Before Trial § 15:551 [2011].) The denial of the allegation that
"Defendant, MTA Bus, was the registered owner of a certain 2007 bus bearing license
number M13688 register in the State of New York" was a denial "in the form alleged",
which is not a permissible form of denial. (See Patrick M. Connors, Practice
Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3018:1.) Whether such
a denial should be construed as an admission against the MTA Bus Company and
Robinson is not an issue before this Court. In any event, it does not, as plaintiffs appear
to [*5]argue, constitute an admission that the MTA
owned the bus at issue, thereby warranting denial of summary judgment. Neither would
these denials bar the MTA on this cross motion from offering any evidence to disprove
that the MTA was not the owner of the bus at issue, or that Robinson was not an MTA
employee. (Stevens v Northern Lights Assoc., 229 AD2d 1001 [4th Dept 1996];
accord Palmier v United States Fid. & Guar. Co., 135 AD2d 1057 [3rd Dept
1987].)
Therefore, the branch of the NYCTA, MTA, Robinson, and MTA Bus
Company's cross motion for summary judgment dismissing the action as against the
NYCTA and MTA is granted.
B.
The NYCTA, MTA,
Robinson and MTA Bus Company argue that plaintiffs should have obtained leave to
amend before serving the amended complaint adding the MTA Bus Company as a
defendant. Consequently, they assert that the amended complaint is a nullity. Plaintiffs
counter that they were entitled to amend the complaint as of right because they amended
their complaint before the NYCTA, MTA, and Robinson answered the original
complaint.
CPLR 1003 states, in relevant part,
"Parties may be added at any stage of the action . . . once without leave of
court within twenty days after service of the original summons or at anytime before the
period for responding to that summons expires or within twenty days after service of a
pleading responding to it."
"In terms of procedural mechanics, CPLR 1003 must be read in conjunction
with the last sentence of CPLR 305 (a) (supplemental summons) and CPLR 3025 (a)-(b)
(amendment of pleadings)." (Vincent C. Alexander, Practice Commentaries, McKinney's
Cons Laws of NY, Book 7B, CPLR C1003:2.) "[T]he time periods allowed for the
CPLR 3025(a) amendment are adopted as the time periods within which the additional
joinder can be accomplished unilaterally under the statutes." (Patrick M. Connors,
Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 3025:3A.) In
multiparty litigation, the pleader may amend as of right "within 20 days after service of
the last pleading responding to his pleading." (Citibank v Suthers, 68 AD2d 790,
794-95 [4th Dept 1979] [interpreting CPLR 3025 (a)].)
Here, on the record presented to the Court, plaintiffs did not amend the complaint
during any of the permissible periods for amendment as of right under CPLR
1003.
1.
It is undisputed that
plaintiffs did not serve the amended complaint within 20 [*6]days after service of the original summons. The amended
complaint was served on March 25, 2014, more than three months after the summons
was served upon the City, NYCTA, and MTA, and purportedly served upon
Robinson.
2.
It does not appear
that plaintiffs amended the complaint before the period for NYCTA, MTA, and
Robinson to respond to the original summons had expired. Generally speaking, an
answer must be served within 20 days after service of the complaint. (CPLR 3012 [d].)
The complaint was apparently served on the NYCTA and MTA on December 5, 2013.
However, because 20 days after December 5, 2013 fell on Christmas day, a public
holiday (General Construction Law § 24), the NYCTA's and MTA's time to answer
the complaint was extended to Thursday, December 26, 2013. (General Construction
Law § 25-a.)
Meanwhile, Robinson was purportedly served with the original summons
and complaint by substituted service on December 17, 2013, and the affidavit of service
upon Robinson was efiled on December 26, 2013. Therefore, service upon Robinson was
purportedly complete ten days after the filing of the affidavit of service, i.e., January 5,
2014. (CPLR 308 [2].) Because Robinson was purportedly served by substituted service,
Robinson had 30 days after completion of the substituted service, i.e., February 4, 2014,
to answer the complaint.
Plaintiffs do not submit any evidence of an agreement with the NYCTA,
MTA, and Robinson that extended their time to answer the complaint. In the absence of
such an extension, it does not appear that plaintiffs amended the complaint before the
period for NYCTA, MTA, and Robinson to respond to the original summons had
expired.3.
The
NYCTA, MTA and Robinson apparently answered the complaint on April 2, 2014.
(Tabankin Affirm., Ex C.) Plaintiffs did not amend the complaint within 20 days
after their answer was served, but rather before their answer was served.
Thus, plaintiffs did not serve an amended complaint during a period which
amendment as of right was permitted.4.
Plaintiffs' failure to obtain leave of
Court or the consent of all parties to add the MTA Bus Company as a defendant
"rendered the supplemental summons and amended complaint a legal nullity."
(Yadegar v International Food Mkt., 306 AD2d 526 [2d Dept 2003]; Perez v
Paramount Communications, 92 NY2d 749, 753 [1999].) "[N]evertheless, a failure
to obtain leave of the court may be waived and is not fatal in all cases." (Santopolo v
Turner Const. Co., 181 AD2d 429, 429 [1st Dept 1992].)
Here, the NYCTA, MTA, Robinson, and MTA Bus Company apparently
[*7]answered the amended complaint and efiled the
amended answer on May 28, 2014. (Tabankin Affirm., Ex E.). There is no indication in
the record that they rejected the amended complaint as improper. The amended answer,
which asserts 13 affirmative defenses, did not assert the defense of lack of jurisdiction
over the MTA Bus Company or improper joinder due to the improperly amended
complaint, or that the amended complaint was a nullity.[FN1]
The instant cross motion for summary judgment dismissing the action as against the
MTA Bus Company on the ground of improper joinder was not made until August 27,
2014, almost three months after the NYCTA, MTA, Robinson, and MTA Bus Company
answered the amended complaint.
The NYCTA, MTA, Robinson and the MTA Bus Company therefore
waived any right to dispute the propriety of the amended complaint "by retaining the
amended pleading without objection." (Jordan v Altagracia Aviles, 289 AD2d
532, 533 [2d Dept 2001]; Moran v Hurst, 32 AD3d 909 [2d Dept 2006] ["by
retaining the amended pleading without objection and even interposing an answer
thereto, which did not assert an affirmative defense based on lack of jurisdiction, Berger,
SFB & F, and Hurst waived any right to dispute its propriety"]; Tarallo v
Gottesman, 204 AD2d 303 [2d Dept 1994] [appellants waived defect of improper
joinder because the appellants answered the "amended" complaint served on them, and
engaged in discovery for approximately six months until, after the Statute of Limitations
had run, they moved for summary judgment on the ground of improper joinder"].)
Therefore, the branch of the NYCTA, MTA, Robinson, and MTA Bus
Company's cross motion to dismiss the action as against MTA Bus Company on the
ground that plaintiffs did not properly amend their complaint as of right to add MTA Bus
Company as a party pursuant to CPLR 1003 is denied. C.
Robinson claims that he was
never served with the pleadings. The affidavit of service of the summons and complaint
indicates that Robinson was purportedly served on December 17, 2013, by substituted
service upon a "Jane Doe" at "280 Fort Washington Avenue, Apt 45, New York, NY
10032", followed by a mailing by first class mail to that address on December 18, 2013.
(Tabankin Affirm., Ex J.) "Jane Doe" is described as a female, with black skin, black
hair, and 31 years old, with a height between 5 feet 4 inches and 5 feet 8 inches, and a
weight between 131-160 pounds. (Id.)
According to an affidavit of service efiled on May 2, 2014, Robinson was
[*8]purportedly served with the summons and amended
verified complaint on April 12, 2014, by substituted service upon a "Jane Doe" at "280
Fort Washington Avenue, Apt 45, New York, NY 10032", followed by a mailing by first
class mail to that address on April 15, 2014. "Jane Doe" is again described as a female,
with black skin, black hair, and 32 years old, with a height between 5 feet 4 inches and 5
feet 8 inches, and a weight between 131-160 pounds. (Tabankin Affirm., Ex J.)
Robinson states that 280 Fort Washington Ave Apt 45 is his address, but states that no
woman resides with him who fits the description of "Jane Doe." (Tabankin Affirm., Ex I
[Robinson Aff.] ¶¶ 14-16.) Robinson therefore argues that a traverse hearing
is required.
However, plaintiffs correctly indicate that Robinson waived the objection of
improper service, because he did not move for dismissal on that ground within 60 days of
raising the defense in his amended answer. (CPLR 3211 [e].) The NYCTA, MTA,
Robison, and MTA Bus Company apparently answered the amended complaint on May
28, 2014. The instant cross motion was made on August 27, 2014, ninety-one days later.
Robinson does not allege any undue hardship that prevented a timely motion to dismiss
on the ground of improper service, which would warrant an extension. (CPLR 3211 [e];
Reyes v Albertson, 62
AD3d 855 [2d Dept 2009].)
Robinson's reliance on CPLR 2004 for an extension for good cause is
misplaced. (See Abitol v Schiff, 180 Misc 2d 949 [Sup Ct, Queens County 2000],
mod on other grounds 276 AD2d 571 [2nd Dept 2000].) "[T]he only way the
defendant could have avoided the 60—day time limit was by a showing of undue
hardship" (CPLR 3211[e]), which is not present here." (Thompson v Cuadrado,
277 AD2d 151, 152 [1st Dept 2000] [citing Abitol].)
Therefore, the branch of the NYCTA, MTA, Robinson, and MTA Bus
Company's cross motion to dismiss the action as against Robinson due to improper
service of process is denied.D.
For the first time in their reply, the NYCTA, MTA, Robinson, and MTA Bus
Company contend that "[s]ervice of that amended complaint was never properly
effectuated on MTA BUS COMPANY." (Tabankin Reply Affirm. ¶ 15.) However,
this argument is improperly raised for the first time in reply. (Ritt v Lenox Hill
Hosp., 182 AD2d 560 [1st Dept 1992].) In any event, the MTA Bus Company
waived any objection to improper service of process of the amended complaint because,
like Robinson, the MTA Bus Company did not move for dismissal on that ground within
60 days of raising the defense in the amended answer. (CPLR 3211 [e].)
E.
Public Authorities
Law § 1276 (1) states,
"As a condition to the consent of the state to such suits against the authority
[*9][Metropolitan Transportation Authority], in every
action against the authority for damages, for injuries to real or personal property or for
the destruction thereof, or for personal injuries or death, the complaint shall contain an
allegation that at least thirty days have elapsed since the demand, claim or claims upon
which such action is founded were presented to a member of the authority or other
officer designated for such purpose and that the authority has neglected or refused to
make an adjustment or payment thereof."
Public Authorities Law § 1276 (1) applies to subsidiaries of the
Metropolitan Transportation Authority (Public Authorities Law § 1276 [6]), and the
MTA Bus Company is a subsidiary of the Metropolitan Transportation Authority. (See Rampersaud v Metropolitan
Transp. Auth. of the State of NY, 73 AD3d 888 [2d Dept 2010].) Thus, as
applied to the MTA Bus Company, Public Authorities Law § 1276 (1) requires that,
in every action against the MTA Bus Company for personal injuries, the complaint must
allege that a pre-suit demand was made upon the MTA Bus Company at least 30 days
prior to commencement of suit against the MTA Bus Company, and that the MTA Bus
Company "neglected or refused to make an adjustment or payment thereof." (See
Andersen v Long Is. R.R., 59 NY2d 657 [1983].) Compliance with Public
Authorities Law § 1276 (1) is a condition precedent to suit against the MTA Bus
Company. (See Fleming v Long Is. R.R., 72 NY2d 998, 999 [1988].)
Here, plaintiffs argue that service of the notice of claim upon the MTA satisfied the
requirement of a pre-suit demand upon MTA Bus Company. Plaintiffs contend that any
mistake should be excused because the address listed on the DMV registration of the bus
is 341 Madison Avenue. MTA, NYCTA, Robinson and MTA Bus Company contend
that service of the pre-suit demand should have been made at the principal place of
business of the MTA Bus Company, 2 Broadway, New York, New York, which is the
only address where the MTA Bus Company accepts service of process. (Tabankin Reply
Affirm., Ex A [Polese Aff.] ¶ 4.)
There is no appellate authority as to whether service of a pre-suit demand on
the MTA Bus Company must be made only at the address where it accepts service of
process, i.e., at its principal place of business. The Court need not reach the question of
whether a notice of claim delivered to an address listed on a vehicle registration for the
MTA Bus Company would constitute a valid pre-suit demand upon the MTA Bus
Company. The notice of claim was clearly addressed to, intended for, and received by,
the MTA. Under the circumstances, service of the notice of claim upon the MTA here
therefore does not constitute a valid pre-suit demand upon the MTA Bus Company.
Service of a pre-suit demand upon the MTA Bus Company is not required as a
condition precedent to suit against Robinson, an employee of the MTA Bus Company. A
comparison between Public Authorities Law § 1276 with Public Authorities Law
§ 1212, which applies to the NYCTA, is instructive. Public Authorities Law §
1212 (4) requires the allegation that a notice of claim be served upon the NYCTA at least
30 days prior to suit in any action against "the authority or against such officer or
employee on account of such negligence . . ." (emphasis supplied.) The Legislature
did not include similar language in Public Authorities Law § 1276, which suggests
that the pre-suit demand should not be read to include actions against employees. Indeed,
the Appellate Division, First Department very recently ruled, "there is no statutory or
legal authority requiring service of a demand on an employee of a subsidiary of the
MTA." (Wolfson v Metropolitan Transp. Auth., —AD3d&mdash, 2014
WL 7372743 [1st Dept 2014]).
Therefore, the branch of the NYCTA, MTA, Robinson, and MTA Bus
Company's cross motion for summary judgment dismissing the action as against MTA
Bus Company and Robinson due to non-compliance with Public Authorities Law §
1276 (1) is granted only as to MTA Bus Company, and is otherwise denied.
As a result of the analysis above, the only remaining defendant in this action
is Robinson. [FN2]
III.
Turning to
plaintiffs' motion, plaintiffs argue that they are entitled to summary judgment as to
liability in their favor and dismissal of the counterclaim against plaintiff Louella Wyatt
for comparative fault [FN3]
because the bus rear-ended their vehicle.
In support of their motion, plaintiffs submit an affidavit from Louella Wyatt,
a copy of the police report, and copies of the pleadings. Louella Wyatt states, "The
vehicle I was a lawful passenger in was traveling Westbound on East 116th Street when
our vehicle was rear ended by the motor vehicle being owned by Defendant,
METROPOLITAN TRANSPORTATION AUTHORITY and operated by Defendant,
ANTONIO C. ROBINSON who was traveling in the same compass direction on East
116th Street . . ." (Goldstein Affirm., Ex A [Louella Wyatt Aff]. ¶ 5.)
According to Robinson,
"As I was traveling through the intersection of East 116th Street and Park
Avenue, the MTA bus was in the left lane. The MTA bus was in the left lane because
there were double parked vehicles ahead of me blocking the right lane. A vehicle
traveling in front of me made a left turn onto Park Avenue from 116th Street, causing me
to bring the MTA Bus to a complete stop.
Once the vehicle in front of me made the left turn, I slowly proceeded
through the intersection of East 116th Street and Park Avenue. After crossing the
intersection, I continued forward still in the left lane.
Suddenly and without warning, a Toyota Sienna van operated by Rafael
Price traveling in the same direction sped up on my right side and cut the MTA bus off
by switching lanes from right to left directly in front of the MTA bus.
While it was in the process of switching lanes, the Toyota Sienna van
operated by Rafael Price then abruptly stopped in front of the MTA bus for no apparent
reason, causing the front right side bumper of the MTA bus to make contact with the left
rear bumper of the Toyota Sienna van."
(Robinson Aff. ¶¶ 6-9.)
Summary judgment against Robinson is denied. The differing accounts raise triable
issues of fact as to whether Robinson's bus rear-ended plaintiffs' vehicle, thereby
triggering the presumption of negligence, or whether the bus made contact with
plaintiffs' vehicle when non-party Rafael Price made an unsafe lane change. (See
Vehicle and Traffic Law § 1128 [a].[FN4]
) Given that Price has not been deposed and has [*10]not
submitted an affidavit on this motion and cross motion, summary judgment in plaintiffs'
favor against Robinson is premature.
CONLCUSION
Accordingly, it is
hereby
ORDERED that plaintiffs' motion for summary judgment is denied; and it is
further
ORDERED that the cross motion for summary judgment by defendants New
York City Transit Authority, Robinson, the Metropolitan Transportation Authority, and
MTA Bus Company, is granted in part, and the amended complaint is dismissed as
against defendants New York City Transit Authority, Metropolitan Transportation
Authority, and the MTA Bus Company, and the Clerk is directed to enter judgment in
favor of these defendants, together with costs and disbursements to these defendants, as
taxed by the Clerk upon presentation of a bill of costs, and the cross motion is otherwise
denied; and it is further
ORDERED that the action is severed and continued as against the remaining
defendant, Antonio C. Robinson.
|
Dated: January 13, 2015New York, New York
|
ENTER:
/s/
J.S.C.
|
Footnotes
Footnote 1:The fifth affirmative
defense of the amended verified answer asserts lack of personal jurisdiction, but on the
ground that "plaintiffs have failed to properly serve defendants with the Summons in this
matter." (Tanbankin Affirm., Ex E.)
Footnote 2:Although the MTA Bus
Company must be dismissed as a named defendant from this action, the Court notes that
Public Authorities Law § 1276 (3), which applies to the MTA Bus Company, states,
"The authority shall be liable, and shall assume the liability to the extent
that it shall save harmless any duly appointed officer or employee of the authority, for the
negligence of such officer or employee, in the operation of a vehicle or other facility of
transportation owned or otherwise under the jurisdiction and control of the authority in
the discharge of a duty imposed upon such officer or employee at the time of the
accident, injury or damages complained of, while otherwise acting in the performance of
his duties and within the scope of his employment."
It appears that the MTA Bus Company has already assumed Robinson's
defense, insofar as Robinson and MTA Bus Company are represented by the same
counsel.
Footnote 3:Although it is
undisputed that plaintiff Louella Wyatt was a passenger in the vehicle operated by
non-party Rafael Price, the NYCTA, MTA, Robinson and MTA Bus Company contend
that, as the alleged owner of the vehicle, plaintiff Louella Wyatt is vicariously liable for
Price's actions under Vehicle and Traffic Law § 388.
Footnote 4:Vehicle and Traffic Law
§ 1128 (a) states, "A vehicle shall be driven as nearly as practicable entirely within a
single lane and shall not be moved from such lane until the driver has first ascertained
that such movement can be made with safety."