The following were read on this motion (Seq 1) for SUMMARY JUDGMENT submitted on June 12, 2025.

Upon the forgoing papers, Defendant Kumo Sushi Lounge Inc. (hereinafter "Kumo Sushi") moves for an Order pursuant to CPLR § 3212, granting summary judgment in their favor and dismissing Plaintiff D.W.'s (hereinafter "Plaintiff") complaint. Defendants Desheng Li (hereinafter "Mr. Li") and Chan Juan Huang (hereinafter "Ms. Huang") cross-move for an Order pursuant to CPLR § 3212, granting summary judgment in their favor and dismissing Plaintiff's complaint and all cross claims. Plaintiff opposes both Kumo Sushi's motion and Mr. Li's and Ms. Huang's cross-motion.

This is a negligence action to recover damages that Plaintiff allegedly sustained from a motor vehicle accident that occurred on November 20, 2020, on the southbound Hutchinson River Parkway, 177 feet north of Bruckner Boulevard in Bronx, New York. Plaintiff commenced this action both individually and as the parent and natural guardian of her infant son, J.W.

In support of their motion, Kumo Sushi submits, inter alia, copies of the pleadings and Ms. Chen's, Ms. Huang's, and Mr. Li's depositions. In support of their cross-motion, Mr. Li and Ms. Huang submit, inter alia, copies of the pleadings and Mr. Li's deposition.

In opposition to Kumo Sushi's motion, Plaintiff submits, inter alia, Plaintiff's deposition. In opposition to Mr. Li's and Ms. Huang's cross-motion, Plaintiff submits, inter alia, a copy of the Hon. Fernando Tapia's I.A.S. Part 13 Rules.

Kumo Sushi has failed to establish a prima facie entitlement to summary judgment on the issue of Plaintiff's liability because Mr. Li's deposition contains conflicting information on whether J.W. was the sole and proximate cause of the accident.

Vehicle and Traffic Law § 1229-a states that no person shall, "as a pedestrian, occupy any space within the limits of a state expressway highway or state interstate route highway, including the entrances thereto and exits therefrom."

Under CPLR § 3212, "It is well established that 'the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact.'" Viviane Etienne Med. Care v Country-Wide Ins. Co., 25 NY3d 498, 511 [2015], citing Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]; see Finkelstein v. Cornell Univ. Med. College, 269 AD2d 114, 117 [1st Dept 2000].

As Kumo Sushi claims, Mr. Li's deposition states that J.W. suddenly ran across Hutchinson River Parkway and towards the fifteen (15) passenger commuter van that Mr. Li was driving. (Exhibit G, p. 54). Mr. Li saw J.W. about one second before the accident. (Exhibit G, pp. 59 and 60). Mr. Li reacted by swerving to the left lane and struck J.W. on the right front side of the van. (Exhibit G, pp. 54 and 64).

However, Mr. Li's deposition also states that Mr. Li first observed J.W. standing in the grass island between two lanes of traffic, and was standing on the side of the highway, before the accident. (Exhibit G, pp. 55 and 57). Mr. Li first observed J.W. about one hundred (100) feet ahead. (Exhibit G, p. 61). Mr. Li never tried bringing the van to a complete stop. (Exhibit G, p. 58). Mr. Li did not honk the van's horn (Exhibit G, p. 64). Mr. Li was only in the process of changing lanes when the accident occurred. (Exhibit G, p. 64).

Mr. Li's conflicting deposition testimony calls into question whether J.W. was the sole and proximate cause of the accident or whether Mr. Li acted negligently. Therefore, Kumo Sushi failed to establish a prima facie entitlement to summary judgment on the issue of Plaintiff's liability.

Kumo Sushi has failed to establish a prima facie entitlement to summary judgment on the issue of the van's ownership because Ms. Huang, while having ownership interest in the van, was the manager of Kumo Sushi, Kumo Sushi funded her purchase of and reimbursed her for expenses regarding the van, and Kumo Sushi demonstrated all the behavior of a property owner in the possession and use of the van.

Vehicle and Traffic Law § 388(1) states that "every owner of a vehicle used or operated in this state shall be liable and responsible for death or injuries to person or property resulting from negligence in the use or operation of such vehicle, in the business of such owner or otherwise, by any person using or operating the same with the permission, express or implied, of such owner."

Kumo Sushi claims to have no ownership of the van. Ms. Huang's deposition states that Ms. Huang had ownership interest in the van. (Exhibit F, p. 56). Ms. Huang held insurance for the van, and it was registered in her name. (Exhibit F, pp. 42 and 43).

However, Ms. Chen's and Ms. Huang's deposition state that Ms. Huang was the manager of Kumo Sushi. (Exhibit E, p. 16). Ms. Huang's driver's license was registered to Kumo Sushi's address. (Exhibit F, pp. 16 and 17). The van itself was registered to Kumo Sushi's address. [*2](Exhibit F, pp. 23 and 34). When the van was not in use, it was parked by the Kumo Sushi restaurant every day, and when the van was in use it was to exclusively transport employees to and from the restaurant. (Exhibit E, p. 31).

Additionally, Kumo Sushi provided Ms. Huang with the funds for the van by reimbursing her after she purchased the van. (Exhibit E, pp. 36 and 37). Kumo Sushi also reimbursed Ms. Huang for vehicle expenses such as Gas, EZPass usage, tolls, motor vehicle insurance payments, repairs made to the van after the accident. (Exhibit E, pp. 34, 35, 36, 38, 47, 48).

Given that Ms. Huang was the manager of Kumo Sushi, that Kumo Sushi funded and reimbursed Ms. Huang's purchase of and expenses regarding the van, and that Kumo Sushi behaved like a property owner in the possession and use of the van, Kumo Sushi has failed to establish a prima facie entitlement to summary judgment on the issue of the van's ownership.

Kumo Sushi has failed to establish a prima facie entitlement to summary judgment on the issue of Mr. Li's scope of employment because Mr. Li's duties under Ms. Huang, other than being a cook at Kumo Sushi, also encompassed occasionally driving the van for the purpose of transporting employees to and from the Kumo Sushi restaurant in Flushing, including the task of driving the van to transport employees back to Flushing on the date of the accident.

"The doctrine of respondeat superior renders an employer vicariously liable for torts committed by an employee acting within the scope of the employment." Judith Mv Sisters of Charity Hosp., 93 NY2d 932, 933 [1999]. "Pursuant to this doctrine, the employer may be liable when the employee acts negligently or intentionally, so long as the tortious conduct is generally foreseeable and a natural incident of the employment." Id.; see Riviello v Waldron, 47 NY2d 297, 304 [1979].

Kumo Sushi claims that Mr. Li acted outside the scope of his employment during the accident. Mr. Li's deposition states that Kumo Sushi hired Mr. Li as a cook, not as a driver of the van. (Exhibit G, pp. 19 and 21).

However, Mr. Li's deposition also shows that Mr. Li, as part of his employment position other than "cook," occasionally was the driver of the van for the purpose of transporting employees to and from the Kumo Sushi restaurant. (Exhibit G, p. 31). Mr. Li had to personally report to Ms. Huang, the manager of Kumo Sushi, regarding any of his duties. (Exhibit G, pp. 22 and 23). The only other person who drove the van other than Mr. Li was Ms. Huang herself. (Exhibit G, p. 39). On the date of the accident, Ms. Huang gave Mr. Li permission to drive the van to transport employees back to the Kumo Sushi restaurant in Flushing. (Exhibit G, pp. 37, 38, 39).

Given that Mr. Li's duties encompassed occasionally driving employees to and from the Kumo Sushi restaurant in Flushing, including the task of driving the van to transport employees back to Flushing on the date of the accident, Kumo Sushi has failed to establish a prima facie entitlement to summary judgment on the issue of Mr. Li's scope of employment.

Plaintiff has established a basis for denying Mr. Li's and Ms. Huang's cross-motion in its entirety because Mr. Li and Ms. Huang have failed to submit their cross-motion for summary judgment within the 60-day deadline under the Hon. Fernando Tapia's I.A.S. Part 16 Rules. Mr. [*3]Li and Ms. Huang have also failed to establish a prima facie entitlement to summary judgment on the issue of Plaintiff's liability for the same reasons that Kumo Sushi has failed.

CPLR § 3212(a) states that "any party may move for summary judgment in any action, after issue has been joined; provided however, that the court may set a date after which no such motion may be made, such date being no earlier than thirty days after the filing of the note of issue."

Under the Hon. Tapia's I.A.S. Part 16 Rules, "a motion for summary judgment must be served and filed within (60) sixty days of the filing of the Note of Issue, except with leave of court on good cause shown." This Court notes that Plaintiff has attached the Hon. Tapia's old I.A.S. Part 13 rules as Exhibit A. The Hon. Tapia has moved to Part 16, and his updated I.A.S. Part 16 rules are now available at the Bronx Supreme Court website.

The Court of Appeals has held that "good cause" in CPLR § 3212(a) "requires a showing of good cause for the delay in making the motion—a satisfactory explanation for the untimeliness—rather than simply permitting meritorious, nonprejudicial filings, however tardy No excuse at all, or a perfunctory excuse, cannot be 'good cause.'" Brill v. City of New York, 2 NY3d 648, 652 [2004].

The Note of Issue of the instant case was filed on January 6, 2025, and the deadline for a summary judgment motion was March 7, 2025. Mr. Li and Ms. Huang cross-moved for summary judgment on May 15, 2025, over two months after the deadline. Mr. Li and Ms. Huang have provided no excuse for the delay in making the cross-motion, failing to show good cause. Thus, Plaintiff has established a basis for denying Mr. Li's and Ms. Huang's cross-motion in its entirety.

Accordingly, it is hereby

ORDERED, that Defendant Kumo Sushi's motion for summary judgment is denied, and it is further

ORDERED, that Defendants Mr. Li's and Ms. Huang's cross-motion for summary judgment is denied.

This constitutes the decision and order of the Court.