Frometa v Mar-Can Transp. Co., Inc. (2021 NY Slip Op 21088)

In accordance with CPLR 2219 (a), the decision herein is made upon consideration of all papers filed in the New York State Courts Electronic Filing System (NYSCEF) as submitted by the parties regarding: the motion of plaintiffs Juan B. Frometa, as administrator for the estate of Carmen Altagracia Puello, deceased, and Juan B. Frometa, individually (jointly the administrator) (mot seq No. 2), made pursuant to CPLR 3025, for an order: permitting the filing of (or deem filed) and serving of the proposed supplemental summons and amended verified complaint (the proposed amended complaint) to include proposed plaintiffs "Juan B. Frometa as Father and Natural Guardian of J.F. an Infant, N.F. an Infant, and Connie Frometa" (the proposed plaintiffs) as additional plaintiffs in this action and to allege claims on behalf of the proposed plaintiffs against current defendants Mar-Can Transportation Company, Inc., and Aquiles R. Sanchez (the bus company) and against proposed new additional defendants New York City Board of Education, the City of New York, and New York City Department of Education Office of Pupil [*2]Transportation (the proposed City defendants), and to add claims on behalf of the administrator as against the proposed City defendants; and granting the administrator an order permitting the administrator and the proposed plaintiffs leave to serve a proposed amended notice of claim, nunc pro tunc, or in the alternative, granting the administrator and the proposed plaintiffs leave to renew this{**72 Misc 3d at 319} portion of the motion upon appearance by the proposed City defendants; and the motion of the administrator (mot seq No. 3), made pursuant to CPLR 3212, for an order granting the administrator partial summary judgment as to liability and dismissing the affirmative defense of comparable negligence as against the bus company.

According to the original complaint, on October 14, 2016, at approximately 12:25 p.m., defendant Sanchez (the defendant driver) was operating a school bus in the course of his employment with defendant Mar-Can Transportation Company, Inc. (the vehicle owner) when he struck the decedent Carmen Altagracia Puello (the decedent) (the accident). The vehicle owner is a private school bus company with a contract to transport students for the City of New York, and it is alleged that the City of New York, in some form, is listed as an additional insured on the vehicle owner's policy.

Juan Frometa was married to the decedent and the couple has three children: J.F., an infant, and N.F., an infant (the infant children), and Connie Frometa (the adult child).

At the time of the accident, the decedent was walking at or near the intersection of West Fordham Road and Sedgwick Avenue, Bronx County. The decedent was in the process of crossing the intersection carrying apples when she was struck and killed by the bus company's vehicle. The defendant driver admitted that he was in the center lane of three lanes on West Fordham Road and attempted to make an illegal right-hand turn onto Sedgwick Avenue heading southbound. As he made his turn, he saw "apples" flying into his windshield and stopped. Upon stopping, he realized that he had struck and run over the decedent. He did not see the decedent prior to stopping the bus.

The administrator submits a video that shows the turn of the bus as described.^[FN1] The video reveals that there was nothing blocking the defendant driver's view of the road or the turn, and that the decedent had the right-of-way. Based on where the bus and the car behind it stopped after the impact, and where the bystanders ran to help the decedent, the video shows that the decedent landed near the curb a few feet from the edge of the crosswalk. It is undisputed that the decedent had the walk sign, was hit by the bus, and was thrown forward, and the vehicle then ran over her body. The decedent was conscious{**72 Misc 3d at 320} after impact and was transported to the hospital, where she died.

Approximately two months after the accident, on December 13, 2016, the decedent's husband, Frometa, filed a notice of claim, naming himself as "Proposed Administrator" of the decedent's estate, via an attorney (the original notice of claim). The original notice of claim names the City of New York and the Department of Transportation only and alleges that the relevant city entities negligently designed, maintained, and remediated the dangerous intersection where the accident occurred. There is no mention of any theories of liability based on a contractual relationship between the City of New York, the New York City Board of Education, or the Department of Transportation and the bus company.

On May 9, 2017, Frometa appeared for a hearing against the two noticed city agencies pursuant to General Municipal Law § 50-h (the 50-h hearing). During the 50-h hearing, he testified that there were witnesses to the accident in the neighborhood and his lawyer acknowledged that Frometa had a list of witnesses with their telephone numbers (the witness list). No lawsuit was commenced against the City or its agency as a result of this hearing before the statute of limitations for a claim against the city entities expired.

The defendant driver was criminally charged in Bronx Criminal Court based on the accident. While the papers submitted by the parties are inconsistent as to the initial criminal charges, defendants admit in the affirmation in opposition that the defendant driver:

Based on the criminal information filed on February 7, 2021, the defendant driver was also charged with Administrative Code of the City of New York § 19-190 (a) and (b) (right of way), and Vehicle and Traffic Law § 1146 (a) (drivers to exercise due care).

{**72 Misc 3d at 321}Frometa was issued limited letters of administration and appointed administrator of the decedent's estate on December 19, 2017. The anticipated distributees of the decedent's estate are Frometa, the infant children, and the adult child.

A hearing before Administrative Law Judge (ALJ) Patrick J. Carroll took place on January 31, 2018, pursuant to section 510 (3) of the Vehicle and Traffic Law to investigate the fatal accident. The ALJ found that

Hence, the Administrative Law Judge found defendant driver guilty of a violation of Vehicle and Traffic Law § 1160.

The administrator, Frometa, commenced this litigation on February 2, 2018, against the bus company. The original complaint contains two causes of action: negligence with pain and suffering (survivorship) and wrongful death. In the first, the administrator alleges that the decedent sustained a serious injury and economic loss greater than basic loss as defined by the Insurance Law. As damages, the administrator alleges:

As for damages in the second cause of action based on wrongful death, the administrator alleges that

The bus company filed an answer on April 5, 2018. (NYSCEF Doc No. 5.) In the answer, defendants allege general denials and affirmative defenses of: lack of serious injury; culpable conduct and fault of third party; culpable conduct by the decedent; CPLR 4545; spontaneous and unavoidable occurrence; failure to state a cause of action; open and obvious defect; article 16; emergency doctrine; General Obligations Law article 15; lack of jurisdiction; assumption of risk; paid medical bill offsets; failure to mitigate damages; lack of insurance coverage; lack of affordable care; cost of premiums and out-of-pocket expenses offset; and no cause of action for loss of consortium, respondeat superior, wrongful hiring, and negligence.

In an effort to resolve the matter, the parties agreed to mediate the matter before Judge Allen Hurkin Torres at JAMS on June 27, 2019. The bus company sought to reschedule the mediation, but apparently it was never rescheduled or conducted.

The administrator was deposed on November 12, 2019. He again testified that he possessed a list of witnesses on the witness{**72 Misc 3d at 323} list who were from the neighborhood and had witnessed or had information about the accident. On December 5, 2019, the bus company served a "post-ebt demand" demanding that the administrator exchange the witness list. It was not exchanged.

In May of 2020, almost four years post-accident, the administrator retained new counsel.

Immediately thereafter, on August 17, 2020, the administrator, through his new attorneys, filed the present motion (mot seq No. 2) seeking, in sum and substance, to: serve the proposed amended complaint naming the infant children, the adult child, and Frometa as plaintiffs individually; implead the proposed City defendants; and serve a late notice of claim. Two days later, on August 19, 2020, the administrator filed the second motion before the court (mot seq No. 3) seeking partial summary judgment as to liability and dismissing the affirmative defense of comparative negligence as against the bus company.

On September 8, 2020, the new attorneys for the administrator exchanged the witness list. The witness list consists of a notebook with a list of six witnesses who allegedly witnessed the accident, each designated by first name and a telephone number only.

On the motions, the administrator submits the proposed amended complaint naming the proposed plaintiffs as additional plaintiffs and the proposed City defendants as additional defendants. In the proposed amended complaint, the administrator adds, in essence, allegations that, in addition to the bus company, all of the proposed City defendants were "owners" of the relevant bus, and the defendant driver was operating the bus with their permission based on the allegation that "the vehicle was being operated pursuant to a contract with" the proposed City defendants. The causes of action in the amended complaint are alleged against both the bus company and the proposed City defendants.

The first cause of action alleges that the bus company and the proposed City defendants are vicariously liable for the defendant driver's negligence, and the second cause of action consists of allegations of negligent hiring, supervision, and training. The third cause of action is based on a claim of wrongful death. The fourth cause of action alleges a claim for loss of{**72 Misc 3d at 324} consortium on behalf of Frometa. Finally, in the fifth cause of action, the movant alleges a loss of parental guidance and pecuniary claim on behalf of the proposed plaintiffs.

As for damages, the administrator alleges in the first cause of action (vicarious liability/negligence) that the decedent sustained a serious injury and an economic loss greater than basic economic loss as defined under the Insurance Law. The administrator claims that "[p]laintiffs have been damaged in an amount in excess of the jurisdictional limits" of lower courts, an allegation that is repeated in the other causes of action. In fact, this statement is the only damages allegation in the second cause of action (negligent hiring, supervision, and training).

As for damages for the wrongful death claim in the third cause of action, the administrator alleges that

As for the loss of consortium claim, the administrator alleges: "in consequence of the injuries sustained by the decedent [the administrator] was deprived of the companionship and consortium of the decedent and permanently lost the services of the decedent for the performance of the household duties usually performed by the decedent."

{**72 Misc 3d at 325}The administrator also moves for leave to serve a new, proposed "amended" notice of claim, nunc pro tunc, against the proposed City defendants.

On October 29, 2020, the parties appeared at a virtual calendar and orally argued the issues raised in the motions. At the request of counsel, the parties were granted time to submit additional papers on the issues of the effect of the defendant driver's criminal conviction on the issue of liability and the relation back doctrine.

Discussion

Permission to amend a pleading should be freely given where the proposed amendment is neither palpably insufficient nor patently devoid of merit, and there is no evidence that the amendment would prejudice or surprise the opposing party (Carlino v Shapiro, 180 AD3d 989 [2d Dept 2020]; CPLR 3025 [b]). A court should deny such a motion when the proposed amendment is palpably insufficient or patently without merit (id.; Pedote v Kelly, 124 AD3d 855 [2d Dept 2015]). A motion to amend a complaint or other pleading to add a cause of action or theory of recovery that is time-barred under the applicable statute of limitations is "patently devoid of merit" (Carlino v Shapiro at 990; Schwartz v Walter, 171 AD3d 969, 970 [2d Dept 2019]; see Whitfield-Ortiz v Department of Educ. of City of N.Y., 116 AD3d 580 [1st Dept 2014]).

The Part of the Administrator's Motion (Mot Seq No. 2), Made Pursuant to CPLR 3025, That Seeks Permission to Amend the Complaint to Add the Proposed Plaintiffs as Plaintiffs and to File (or Deem Filed) and Serve the Proposed Amended Complaint to Add Claims on Behalf of the Proposed Plaintiffs as against the Bus Company and the Proposed City Defendants

A wrongful death cause of action in New York is exclusively statutory, the first such statute having been enacted in 1847 (L 1847, ch 450; see also NY Const, art I, § 16). There was no common-law cause of action for wrongful death (Hernandez v New York City Health & Hosps. Corp., 78 NY2d 687 [1991]). Under the wrongful death statute, a decedent's personal representative maintains the action for the benefit of the distributees of the estate and "personal representative" is defined as "a person who has received letters to administer the estate of a decedent" (EPTL 1-2.13, 5-4.1, 5-4.4; id.; see Heslin v County of {**72 Misc 3d at 326}Greene, 14 NY3d 67 [2010]). Hence, by express language of the EPTL statute, wrongful death claims are claims that survive the demise of decedent but seek damages that belong to the estate and must be asserted by the personal representative appointed to administer it (Machado v Gulf Oil, L.P., 195 AD3d 26 [1st Dept 2021]; Shelley v South Shore Healthcare, 123 AD3d 797 [2d Dept 2014]; Gulledge v Jefferson County, 172 AD3d 1666 [3d Dept 2019]; see Heslin v County of Greene; see EPTL 1-2.13, 11-3.2 [b]).

Letters of administration, the document necessary to be deemed a personal representative of the decedent's estate, are granted by the Surrogate's Court. Under the Surrogate's Court Procedure Act, the order of priority for granting letters of administration to distributees of a decedent who died intestate begins with the surviving spouse, followed by the children and then various other family relations (SCPA 1001 [1]). Infants, defined as persons under the age of 18 years, are ineligible to receive letters of administration. If, however, the sole distributee is an infant, his fiduciary, committee or conservator, if he is eligible and qualifies, shall be granted letters of administration (SCPA 1001 [1], [2]; 707 [1] [a]; Machado v Gulf Oil, L.P.).

Of note, while the statutory cause of action for wrongful death must be brought by the personal representative to ensure order in settling decedent's affairs, any damages recovered are exclusively for the benefit of the decedent's distributees (Gulledge v Jefferson County; Heslin v County of Greene). A wrongful death action belongs to the decedent's distributees and is designed to compensate the distributees themselves for their pecuniary losses as a result of the wrongful act (see EPTL 5-4.3; Heslin v County of Greene). In a wrongful death action, an award of damages is limited to the fair and just compensation for the pecuniary injuries resulting from the decedent's death to the persons for whose benefit the action is brought (Leger v Chasky, 55 AD3d 564 [2d Dept 2008]; see Estevez v Tam, 148 AD3d 779 [2d Dept 2017]). The administrator pursues damages for the loss of consortium and loss of parental guidance as part of its role as plaintiff in a wrongful death action (see Reid v St. Luke's-Roosevelt Hosp. Ctr., 191 AD3d 545 [1st Dept 2021]; Sanchez v City of New York, 97 AD3d 501 [1st Dept 2012]).

[1] Here, it is undisputed that the decedent's spouse Frometa received the letters of administration and commenced this action as "Juan B. Frometa, as Administrator for the {**72 Misc 3d at 327}Estate of Carmen Altagracia Puello, deceased." It is also uncontroverted that the proposed plaintiffs are not all infants and the infant children are not the sole distributees of the estate. Frometa, as administrator, is therefore the only person with standing to pursue the cause of action for wrongful death (Shelley v South Shore Healthcare; Jordan v Jordan, 120 AD3d 632 [2d Dept 2014]; Heslin v County of Greene; Machado v Gulf Oil, L.P.). Furthermore, as administrator, he is empowered to pursue damages, on the distributees' behalf, for loss of consortium and loss of parental guidance (see Gonzalez v New York City Hous. Auth., 77 NY2d 663 [1991]; Ambroise v United Parcel Serv. of Am., Inc., 143 AD3d 929 [2d Dept 2016]; Estevez v Tam). Consequently, Frometa and the children lack standing to commence the lawsuit as individual plaintiffs. Moreover, as adding the children and Frometa as individual plaintiffs is not necessary to protect their interests, the proposed causes of action based on their individual claims are duplicative.

Likewise, any claim based on pain and suffering under survivorship (EPTL 11-3.2) must be brought by the appointed personal administrator. These claims survive the demise of decedent, but seek damages that belong to her estate and must be asserted by the personal representative appointed to administer it (Shelley v South Shore Healthcare; Gulledge v Jefferson County; see Heslin v County of Greene; see EPTL 1-2.13, 11-3.2). Hence, a spouse or child, in their individual capacity, lacks standing to assert such claims on behalf of the decedent (Shelley v South Shore Healthcare; Jordan v Jordan; Long Is. Care Ctr., Inc. v Goodman, 137 AD3d 874 [2d Dept 2016]; Gulledge v Jefferson County; see Barry & Sons, Inc. v Instinct Prods. LLC, 15 AD3d 62 [1st Dept 2005]).

Consequently, the administrator here, as the personal representative who has received letters of administration of a decedent's estate, is the only party who is authorized to commence a survival action to recover damages for personal injuries sustained by the decedent or a wrongful death action to recover damages sustained by the decedent's distributees on account of her death (Jordan v Jordan; Shelley v [*8]South Shore Healthcare; Estevez v Tam; see Gulledge v Jefferson County). The motion to amend the complaint to include the proposed plaintiffs as plaintiffs is therefore appropriately denied as patently without merit as they do not have standing and their joinder is unnecessary to protect their interests (see generally Stallsworth v Stallsworth, 138 AD3d 1102 [2d Dept 2016]).{**72 Misc 3d at 328}

Accordingly, the part of the motion to amend the complaint that seeks to: name Frometa and the children as new individual plaintiffs; amend the original causes of action; and allege new individual derivative causes of action on their behalf against the bus company is denied (Jordan v Jordan; see generally Cahill v Jordan Home Servs., LLC, 145 AD3d 847 [2d Dept 2016]). Furthermore, based on the same reasoning, that part of the motion that seeks to permit the proposed plaintiffs to allege the same claims against the proposed City defendants is also denied.

The Part of the Administrator's Motion (Mot Seq No. 2), Made Pursuant to CPLR 3025, for an Order Permitting the Administrator to File (or Deem Filed) and Serve the Proposed Amended Complaint Adding Claims on Behalf of the Administrator against the Proposed City Defendants

As previously stated, while leave to amend pleadings "shall be freely given" (CPLR 3025 [b]), it may be denied where the proposed amendment is palpably insufficient as a matter of law or is totally devoid of merit (see Grant v Brooklyn Ctr. for Rehabilitation & Residential Health Care, LLC, 153 AD3d 798 [2d Dept 2017]; Jenal v Brown, 80 AD3d 727 [2d Dept 2011]). A motion to amend a complaint or other pleading to add a cause of action or theory of recovery that is time-barred under the applicable statute of limitations is patently devoid of merit (Grant v Brooklyn Ctr. for Rehabilitation & Residential Health Care, LLC; Whitfield-Ortiz v Department of Educ. of City of N.Y.; Watkins-Bey v MTA Bus Co., 174 AD3d 553 [2d Dept 2019]). Hence, where a motion to amend a complaint to add a cause of action to recover damages for wrongful death is made after the statute of limitations had expired, more than two years after the decedent's death (see EPTL 5-4.1 [1]), the proposed amendment is devoid of merit (Grant v Brooklyn Ctr. for Rehabilitation & Residential Health Care, LLC). Here, the defendants argue that the statute of limitations expired years ago on the causes of action alleged in the proposed amended complaint against the proposed City defendants and, as such, the motion to amend must be denied as patently without merit. Of note, the administrator provides no justification for the failure to implead the proposed City defendants in the original complaint.

As the proposed City defendants are entities of the City of New York, the statute of limitations which governs the claims at issue here is set forth in General Municipal Law § 50-i (1). The statute provision provides, in relevant part:

Hence, to warrant the grant of the motion, the administrator must show that the action is timely commenced, and the proposed City defendants received a timely notice of claim, or that leave to file a late notice of claim is justified.

Here, the decedent died approximately 41/2 years ago, on October 14, 2016. Under the Estates, Powers and Trusts Law, the personal representative^[FN2] of the decedent, here the administrator, is empowered to bring a wrongful death claim and has two years from the date of death to commence an action (General Municipal Law § 50-i [1]; see EPTL 5-4.1). Applying these limitations to the facts presented, without a toll, the statute of limitations to allege the claims set forth in the proposed amended complaint against the proposed City defendants expired at least by October 14, 2018, well over two years ago.{**72 Misc 3d at 330} While this action was timely commenced against the original defendants on February 2, 2018, this motion to amend to implead the proposed City defendants was filed August 17, 2020, almost two years beyond the expiration of the statute of limitations and approximately four years after death. As such, without a toll, the administrator's claims against the proposed City defendants are clearly time-barred.

Movant points out that two of the distributees are infants and argues that therefore the infant children, as distributees, may have the benefit of the toll provided by CPLR 208 in the wrongful death action (Hernandez v New York City Health & Hosps. Corp.; Machado v Gulf Oil, L.P.). CPLR 208 provides, in relevant part that

The First Department recently examined the application of the infancy toll to a wrongful death action in Machado v Gulf Oil, L.P. (195 AD3d 26 [1st Dept 2021]). The Court found that, in the limited circumstance where the infant is the sole distributee of a decedent's estate, the toll of CPLR 208 applies to a wrongful death claim until the earliest moment there is a personal representative who can bring the action by appointment of a guardian of the property of the infant distributee or majority of a [*10]distributee, whichever occurs first (id.; Hernandez v New York City Health & Hosps. Corp.). Of note, however, the Court distinguished such a situation, citing the Court of Appeals decision in Hernandez v New York City Health & Hosps. Corp., from the circumstances present in this case, where the infant children are not the "sole distributees" of the decedent's estate and there are adult distributees who are eligible to bring the claims. Under those facts, the statutory and policy considerations concerning an infant's disability from receiving letters of administration that support the application of the infancy toll to a wrongful death claim are not present.

Here, Frometa, as the decedent's spouse, and the decedent's eldest child were both distributees of an age and competency to acquire the letters of administration and, more importantly, timely letters of administration were in fact acquired by Frometa.{**72 Misc 3d at 331} Under the circumstances, therefore, the policy and statutory considerations warranting the application of the toll as discussed in Machado v Gulf Oil, L.P. are not present here, and the proposed plaintiffs are not entitled to a toll based on the infancy of the two infant children.

[2] While the application of the principles expressed in Machado v Gulf Oil, L.P. to the facts presented here is therefore unwarranted, even applying the infancy toll, the action against the proposed City defendants is nonetheless time-barred (id.; see Hernandez v New York City Health & Hosps. Corp.; Heslin v County of Greene). Any infancy toll of CPLR 208 in this action terminated upon the appointment of the administrator as any disability ended^[FN3] (see Machado v Gulf Oil, L.P.; see Kealos v State of New York, 150 AD3d 1211 [2d Dept 2017]). Consequently, when the administrator was issued limited letters of administration on December 19, 2017, the two-year statute of limitations to bring a wrongful death claim against the proposed City defendants began to run (Baker v Bronx Lebanon Hosp. Ctr., 53 AD3d 21 [1st Dept 2008]; Hernandez v New York City Health & Hosps. Corp.). The statute of limitations for the lawsuit therefore expired on December 19, 2019, well before this motion was filed on August 17, 2020. Hence, the administrator's present attempt to pursue a wrongful death claim against the proposed City defendants is well beyond the expiration of the statute of limitations under any and all of the alleged variables.

Statute of Limitations on the Cause of Action for Survivorship (Pain and Suffering)

The cause of action based on survivorship (conscious pain and suffering) founded on negligence is time-barred because the administrator was appointed and failed to timely commence the action. Of note, the infancy toll has no relevancy as the necessary connection between infant distributees in a personal injury action brought on behalf of the deceased under EPTL 11-3.2 (b) is lacking as such a claim redresses a wrong suffered by the deceased, not the distributees. Unlike a wrongful death claim that directly compensates a decedent's distributees for{**72 Misc 3d at 332} their own damages, a personal injury claim is designed to compensate the decedent for injuries suffered and is personal to the deceased—in other words, it is a claim assumed by the estate. Hence [*11]the rationale underlying the court taking into account the infancy of a sole distributee because the wrongful death claim belongs to and is for the "sole benefit" of the distributee does not apply in the context of a tort that belongs to the estate and seeks to redress a wrong suffered by the deceased, not the distributees (Heslin v County of Greene; Machado v Gulf Oil, L.P.; see Vinogradov v Bay Plaza Apts Co., LLC, 189 AD3d 1663 [2d Dept 2020]). Here, the administrator was timely appointed and the interests of the estate were protected. Based on the facts presented, therefore, the time for the administrator to pursue such a cause of action against the proposed City defendants has expired and the claim is time-barred.

In an attempt to avoid the statute of limitations bar to the proposed claims, the administrator argues that the "relation back doctrine" permits the pursuit of the causes of action against the proposed City defendants based on the original complaint (CPLR 203 [b]). In essence, the administrator contends that serving and naming the bus company as a defendant in this action in the original complaint should be considered tantamount to serving and naming the proposed City defendants with the original complaint because the two are "united in interest" such that service on one equals service on both in terms of statute of limitation considerations.^[FN4]

The relation back doctrine, now codified in CPLR 203 (f), provides that a "claim asserted in an amended pleading is deemed to have been interposed at the time the claims in the original pleading were interposed, unless the original pleading does not give notice of the transactions [or] occurrences . . . to be proved pursuant to the amended pleading" (CPLR 203 [f]). As to a proposed amendment to the complaint to add additional defendants, a claim asserted against a new party will relate back to the date upon which the plaintiff's claim was previously interposed against the original named defendant, despite the fact that the new party was not named in the originally served process, but only if: (1) both claims arose out of the same conduct, transaction or occurrence; (2) the new party is{**72 Misc 3d at 333} "united in interest" with the original defendant and thus can be charged with notice of the initiation of the action without being prejudiced in maintaining a defense on the merits; and (3) the new party knew or should have known that but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against him as well (Morel v Schenker, 64 AD3d 403 [1st Dept 2009]; see Buran v Coupal, 87 NY2d 173 [1995]). The linchpin of the relation back doctrine is notice to the defendant within the applicable limitations period of the claims that are to be alleged against it (Gaspari v Sadeh, 61 AD3d 405 [1st Dept 2009]; Buran v Coupal).

The administrator bears the burden of showing that the action is permitted to continue under the relation back doctrine (Fasce v Smithem, 188 AD3d 1542 [3d Dept 2020]). The parties here agree that the circumstances in this case satisfy the first prong of the test.

[3] In contrast, the administrator fails to meet his burden of showing that the second prong, that the new party is wholly "united in interest" with the original defendant, is [*12]satisfied here. Of note, the proposed City defendants were not named in this action when it was commenced years ago and the only named defendants in this case are an independent bus company and its driver. As a foundation for holding the proposed City defendants liable for the decedent's injuries and death, the administrator alleges in the proposed amended complaint that the proposed City defendants are vicariously liable for the defendant driver's negligence, and are liable based on principles of negligent hiring, supervision, and training. The administrator argues that the proposed City defendants are "united in interest" with the bus company based on these claims and the fact that some of the proposed City defendants are supposedly named as additional insureds on the bus company's insurance policy.

The classic test for determining unity of interest is that if the interest of the parties in the subject matter is such that they stand or fall together and that judgment against one will similarly affect the other, then they are united in interest (Seeler v AMA Consulting Engrs., P.C., 190 AD3d 508 [1st Dept 2021]). Importantly, the requirement of unity of interest is more than a notice provision because the test is whether "the interest of the parties in the subject-matter is such that they stand or fall together and that judgment against one will similarly affect the other" (Higgins v City of New York, 144 {**72 Misc 3d at 334}AD3d 511, 513 [1st Dept 2016]). Unity of interest will not be found unless there is some relationship between the parties giving rise to the complete vicarious liability of one for the conduct of the other (id.; see Mondello v New York Blood Ctr.—Greater N.Y. Blood Program, 80 NY2d 219 [1992]). Hence, unity of interest fails if there is a possibility that the new defendants may have a defense unavailable to the original defendants (Higgins v City of New York).

Of note, there is no allegation that the proposed City defendants were co-owners of the private bus company, or that the bus company and the proposed City defendants shared office space, tax identification numbers, or employee rolls. In fact, it is undisputed that the proposed City defendants are separate and discrete city agencies even from each other (see Seeler v AMA Consulting Engrs., P.C.).

Based on the record, although the proposed City defendants' and the bus company's defenses to the litigation may overlap, the proposed City defendants have defenses to the causes of action alleged against them (vicarious liability and negligent hiring, supervision, and training) that are unavailable to the original defendants. As for the administrator's claim that the proposed City defendants are vicariously liable for the bus company's driver's negligence in transporting students, without more, it lacks merit as the Court of Appeals has held that there is no inherent basis for finding the City vicariously liable for the liability of an independent contractor bus company that transports school children (Chainani v Board of Educ. of City of N.Y., 87 NY2d 370 [1995]). Here, nothing presented by the administrator raises an issue of fact as to the applicability of any exception to the general rule of nonliability for the negligent act of an independent contractor (Hill v City of New York, 151 AD3d 1032 [2d Dept 2017]), and the proposed City defendants' defenses based on this principle, as well as others, do not rise and fall with the bus company's defenses in the action.

Similarly, the proposed City defendants' defenses to the cause of action of negligent hiring, supervision, and training are separate and distinct from any defense available to the bus company as the acknowledged employer of the defendant driver. Once again, the proposed City defendants were not co-owners of the private bus company, did not share office space, tax identification numbers, or employee rolls and are separate and discrete city agencies even from each other (see Seeler v {**72 Misc 3d at 335}AMA Consulting Engrs., P.C.). There is no showing in the record that these proposed defendants in any way participated in the hiring or training of the defendant driver. The mere fact that some of the proposed City defendants may have been named as additional insureds on a bus company policy is insufficient, standing alone, to generate a question as to whether the city agencies named in the policy, or the agencies that were not named, are owners of the relevant bus or employers of the driver (see Stefansky v City of New York, 2016 NY Slip Op 33094[U] [Sup Ct, Queens County 2016]; see Watkins-Bey v MTA Bus Co., 174 AD3d 553 [2d Dept 2019]). Under the circumstances, the proposed City defendants' defenses to the cause of action, including the lack of any relationship to the defendant driver's employment and training, do not rise and fall with the bus company's defenses in the personal injury action (see Bailly v Rudolf Steiner School, 293 AD2d 259 [1st Dept 2002]). Based on the motion papers, the administrator fails to satisfy his burden under the second prong of showing the proposed City defendants and the bus company are united in interest (Durstenberg v Electrolux Home Prods., Inc., 181 AD3d 444 [1st Dept 2020]).

In any event, the administrator also fails to satisfy the third prong of the relation back test. On the record, there is no basis for finding that the proposed City defendants knew or should have known within the limitations periods that, but for a mistake by the administrator as to the identity of the proper parties, the action would have been brought against the additional party as well (see Buran v Coupal; Doe v HMO-CNY, 14 AD3d 102 [4th Dept 2004]). In fact, there is no evidence of a mistake by the administrator as to the identity of the proper parties or a mistake in the deliberate decision by the administrator's prior attorneys not to sue the proposed City defendants. The administrator was well aware of the identity of the proposed City defendants, participated in a 50-h hearing, and understood the circumstances of the accident almost immediately after the decedent died. Armed with this information and represented by attorneys, the administrator declined to pursue a claim against the City or its agencies and now fails to provide the court any explanation for that decision (see Durstenberg v Electrolux Home Prods., Inc.). As the administrator intentionally declined to allege a claim against a party known to be potentially liable, there has been no mistake, and the administrator should not be given a second opportunity to assert{**72 Misc 3d at 336} that claim after the limitations period has expired (Losner v Cashline, L.P., 303 AD2d 647 [2d Dept 2003]; see Buran v Coupal).

Accordingly, the relation back doctrine is inapplicable to this matter and the causes of action sought to be alleged against the proposed City defendants by the administrator are time-barred. In addition, based on the findings herein, that part of the motion that seeks an order granting the administrator leave to: serve a proposed amended notice of claim, nunc pro tunc; serve a late notice of claim; or renew [*14]this portion of the motion upon appearance by the proposed City defendants is therefore denied as moot.

Even were the motion not denied for the reasons set forth above, however, under all circumstances, the administrator's motion is denied based on the failure to serve timely notice of claim on the proposed City defendants, and failure to seek leave to file a late notice of claim, pursuant to General Municipal Law § 50-e (5), within the applicable statute of limitations (Yessenia D. v New York City Health & Hosps. Corp., 139 AD3d 454 [1st Dept 2016]). Service of a notice of claim after accrual of the claim is a condition precedent to the commencement of a tort action against a public corporation or any employee thereof (id.; see Education Law § 3813 [2]; General Municipal Law §§ 50-e [1] [a]; 50-i [1] [a]; Cassidy v Riverhead Cent. Sch. Dist., 128 AD3d 996 [2d Dept 2015]).

To the extent that the administrator argues that the original notice of claim was sufficient to place the proposed City defendants on notice of the causes of action alleged in the proposed amended complaint, the contention lacks merit. The original notice of claim was served on the City and another agency which is not a proposed defendant in this action. Furthermore, the original notice and the connected 50-h hearing, which took place many years ago, were solely based on allegations of negligent design of the relevant intersection and roadway. This notice was patently insufficient to place the City, and the other uninvolved agencies, on notice of claims based on vicarious liability for the negligence of a driver employed by an independent bus company or the negligent supervision, training, and hiring of said driver (see Pierson v City of New York, 56 NY2d 950 [1982]).

Furthermore, the administrator's request for leave to serve a late notice of claim is denied as the motion for leave to file a{**72 Misc 3d at 337} late notice of claim, pursuant to General Municipal Law § 50-e (5), is outside of the applicable statute of limitations and, as such, the court is without jurisdiction to grant the requested relief (Townsend v City of New York, 173 AD3d 809 [2d Dept 2019]; Yessenia D. v New York City Health & Hosps. Corp.). Where a party moves for such relief or to deem a late notice of claim timely served nunc pro tunc, after the allotted period has expired, the Supreme Court is without authority to grant such relief (Yessenia D. v New York City Health & Hosps. Corp.; Cassidy v Riverhead Cent. Sch. Dist.; Watts v City of New York, 186 AD3d 1574 [2d Dept 2020]; see Flores v Fraser, 159 AD3d 499 [1st Dept 2018]). Accordingly, the proposed amended complaint seeking to implead the proposed City defendants is patently without merit as the movant failed to timely serve a notice of claim or to timely seek leave to serve a late notice of claim, and the precondition to suing the proposed City defendants is not satisfied.^[FN5]

In sum, all of the causes of action alleged on behalf of the proposed plaintiffs are devoid of merit as said plaintiffs lack standing. Similarly, the claims sought to be alleged [*15]by the administrator against the proposed City defendants are without merit because they are time-barred and there was a failure to serve a timely notice of claim. Furthermore, it is undisputed that the proposed pleading does not seek to set forth a new cause of action on behalf of the administrator against the bus company. As such, the entire proposed amended complaint is completely devoid of merit, and the motion to serve the amended complaint is appropriately denied.

The Administrator's Motion (Mot Seq No. 3), Seeking an Order Granting the Administrator Partial Summary Judgment as to Liability against the Bus Company and Dismissing the Affirmative Defense of Comparable Negligence

A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant's negligence was a proximate cause of the alleged injuries (Tsyganash v Auto Mall Fleet Mgt., Inc., 163 {**72 Misc 3d at 338}AD3d 1033 [2d Dept 2018]; see Rodriguez v City of New York, 31 NY3d 312 [2018]). A plaintiff is no longer required to show freedom from comparative fault in establishing his or her prima facie case (see Rodriguez v City of New York). Importantly, once this showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Madeline D'Anthony Enters., Inc. v Sokolowsky, 101 AD3d 606 [1st Dept 2012]). Of note, where a defendant fails to oppose facts advanced on a motion for summary judgment, the facts as alleged in the movant's papers are deemed admitted as there is, in effect, a concession that no question of fact exists (see Kuehne & Nagel v Baiden, 36 NY2d 539 [1975]; see also Funk v Seligson, Rothman & Rothman, Esqs., 165 AD3d 429 [1st Dept 2018]).

The administrator sets forth a prima facie showing of entitlement to partial summary judgment as to liability against the bus company (Drummond v Perez, 146 AD3d 645 [1st Dept 2017]; Ortiz v Lynch, 105 AD3d 584 [1st Dept 2013]; Garcia v Verizon N.Y., Inc., 10 AD3d 339, 340 [1st Dept 2004]; see Rozon v Rosario, 144 AD3d 597 [1st Dept 2016]). A violation of the Vehicle and Traffic Law constitutes negligence per se (Drummond v Perez; see Davis v Turner, 132 AD3d 603 [1st Dept 2015]; Flores v City of New York, 66 AD3d 599 [1st Dept 2009]). Here, the criminal conviction, the Administrative Law Judge findings, and the defendant driver's own testimony establish, prima facie, that the defendant driver violated provisions of the Vehicle and Traffic Law and was negligent in hitting the decedent when attempting to make a right-hand turn from the center lane (see Vehicle and Traffic Law §§ 1160, 1146 [a]; 1163; Simon v Rent-A-Center E., Inc., 180 AD3d 1100 [2d Dept 2020]). Furthermore, it is uncontroverted that the decedent was crossing an intersection with the light in her favor, and the defendant driver never saw her when defendants' vehicle struck her while making an illegal right turn, establishing the administrator's entitlement to judgment on liability as a matter of law (Curl v Schiffman, 183 AD3d 415 [1st Dept 2020]; Rozon v Rosario; Beamud v Gray, 45 AD3d 257 [1st Dept 2007]). Having presented evidence of the bus company's negligence, the administrator need not demonstrate the decedent's freedom from [*16]comparative fault in order to obtain partial summary{**72 Misc 3d at 339} judgment of liability against the negligent defendant (Rodriguez v City of New York).

In opposition, the bus company does not raise a question of material fact (Villaverde v Santiago-Aponte, 84 AD3d 506 [1st Dept 2011]). Simply put, the defendant driver's own testimony proves that there is no triable issue as to whether there was a nonnegligent explanation on his part for the accident as he confirms that there was contact between the bus and the decedent, the decedent had the light in her favor when the accident occurred, he made a turn that violated the Vehicle and Traffic Law, and he never saw the decedent before hitting her (Curl v Schiffman). His admission of violating a Vehicle and Traffic Law statute is prima facie proof of negligence (Castro v Hatim, 174 AD3d 464 [1st Dept 2019]), and this is true even without the added proof of a guilty plea resulting in a criminal conviction (see Davis v Turner; Alamo v McDaniel, 44 AD3d 149 [1st Dept 2007]). Furthermore, his negligence is confirmed by the submitted video and his statement that he never saw the decedent (Higashi v M&R Scarsdale Rest., LLC, 176 AD3d 788 [2d Dept 2019]). Accordingly, the administrator is granted partial summary judgment as to liability.

In terms of that part of the motion seeking to dismiss the affirmative defense of comparative negligence, even though a plaintiff is no longer required to establish his or her freedom from comparative negligence to be entitled to summary judgment on the issue of liability, the issue of a plaintiff's comparative negligence may be decided in the context of a summary judgment motion where, as here, the plaintiff moved for summary judgment dismissing a defendant's affirmative defense of comparative negligence (see Higashi v M&R Scarsdale Rest., LLC; Wray v Galella, 172 AD3d 1446, 1447 [2d Dept 2019]; see also Hai Ying Xiao v Martinez, 185 AD3d 1014 [2d Dept 2020]). The administrator bears the burden of establishing prima facie that the decedent was free from comparative negligence (Higashi v M&R Scarsdale Rest., LLC; Wray v Galella; Hai Ying Xiao v Martinez; see Paget v PCVST-DIL, LLC, 186 AD3d 1162 [1st Dept 2020]).

Here, the administrator shows through the defendant driver's testimony and the video that the decedent was crossing with the light and at or near the crosswalk when she was stuck by the bus company's vehicle. As such, the administrator makes a prima facie showing that the decedent was not comparatively negligent in causing the accident.{**72 Misc 3d at 340}

In opposition, the bus company fails to generate an issue of fact. As the defendant driver never saw the decedent, based on the record, there is no evidence to generate an issue of fact as to the decedent's comparative negligence in the situation (Higashi v M&R Scarsdale Rest., LLC; Wray v Galella; Maliakel v Morio, 185 AD3d 1018 [2d Dept 2020]).

To the extent that the bus company argues that the motion for summary judgment is premature because the depositions of the six witnesses on the witness list have not been conducted, the argument is rejected. The witness list was produced six months ago, and as of yet the bus company submits no evidence of the efforts to locate and depose such witnesses, or the alleged value of their testimony. Of note, the parties were given until late December to submit additional papers, and that submission [*17]date was thereafter, at the request of the bus company, adjourned to January 2021. As the bus company, to date, failed to offer an evidentiary basis to suggest that discovery may lead to relevant evidence, or that facts essential to opposing the motion were exclusively in the administrator's knowledge and control (see Maliakel v Morio) the motion is denied. The mere hope that a party might be able to uncover some evidence during the discovery process is insufficient to deny summary judgment (Tavarez v Castillo Herrasme, 140 AD3d 453 [1st Dept 2016]; see Mirza v Tribeca Auto. Inc., 189 AD3d 448 [1st Dept 2020]; compare Simmons v Bergh, 192 AD3d 547 [1st Dept 2021]).

The court has considered the additional contentions of the parties not specifically addressed herein. To the extent that any relief requested by either party was not addressed by the court, it is hereby denied. Accordingly, it is hereby ordered that the part of the motion of plaintiffs Juan B. Frometa, as administrator for the estate of Carmen Altagracia Puello, deceased, and Juan B. Frometa, individually (mot seq No. 2), made pursuant to CPLR 3025, for an order permitting the filing of (or deem filed) and serving of the proposed supplemental summons and amended verified complaint to include proposed plaintiffs "Juan B. Frometa as Father and Natural Guardian of J.F. an Infant, N.F. an Infant, and Connie Frometa" as additional plaintiffs in this action, and to allege claims on behalf of the proposed plaintiffs against current defendants Mar-Can Transportation Company, Inc., and Aquiles R. Sanchez and against proposed new additional defendants New York City Board of Education, the City of New York, and New York City{**72 Misc 3d at 341} Department of Education Office of Pupil Transportation is denied; and it is further ordered that the part of the motion of the administrator (mot seq No. 2) that seeks to serve the proposed amended complaint to allege claims on behalf of the administrator as against the proposed City defendants is denied; and it is further ordered that the part of the motion of the administrator (mot seq No. 2) that seeks an order granting the administrator leave to serve a proposed amended notice of claim, nunc pro tunc, upon the proposed City defendants or, in the alternative, granting the administrator leave to renew this portion of the motion upon appearance by the proposed City defendants is denied; and it is further ordered that, in sum, the proposed amended complaint is therefore completely devoid of merit and the administrator's motion sequence No. 2 is denied in its entirety; and it is further ordered that the motion of the administrator (mot seq No. 3), made pursuant to CPLR 3212, for an order granting the administrator partial summary judgment as to liability and dismissing the affirmative defense of comparative negligence as against the bus company is granted.