Terranova v New York-MTA-Metro. Suburban Bus Auth. (MSBA)

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Terranova v New York-MTA-Metro. Suburban Bus Auth. (MSBA) 2012 NY Slip Op 31523(U) April 27, 2012 Supreme Court, Nassau County Docket Number: 4824/08 Judge: F. Dana Winslow Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK Present: HON. F. DANA WINSLOW, Justice TRIAL/IAS, PART 3 NASSAU COUNTY IGNAZIO TERRNOVA as Administrator of the ESTATE OF ADRIANO TERRNOVA, deceased, Plaintiffs, MOTION SEQ. NO. : 002, 003 MOTION DATE: 2/14/12 -againstNew York- MT A- METROPOLITAN SUBURBAN BUS AUTHORITY (MSBA), COUNTY OF NASSAU and JOHN DOE Bus Driver, INDEX NO. : 4824/08 Defendants. The following papers having been read on the motion (numbered 1- 6): Notice of Motion Seq. No. 002................................................................ Notice of Motion Seq. No. 003................................................................ n........................................................................... Affi davit in Op p 0 s iti Affirmatio n in Op positio D......... ....................... ............... ............ ... ........ Affirmatio n in Op positio D... ........................... ................... Rep Iy Affirma ti 0 D.................................................................................... This motion by the defendant County of Nassau for an order pursuant to CPLR 3211(a)(7), 3212 granting it judgment dismissing the complaint against it is determined as provided herein. This motion by the plaintiff Ignazio Terranova , as Administrator of the Estate of Adriano Terranova, for an order pursuant to CPLR 3212 granting it summary judgment against the defendant MTA- Long Island Bus s/hla New York- MTA- Metropolitan Suburban Bus Authority (" MSBA" ) and dismissing the third , fourth , fifth , sixth , eighth and tenth affirmative defenses of the County is determined as provided herein. As Administrator of the Estate of Adriano Terranova , the plaintiff in this action inter alia , the wrongful death of Adriano Terranova. Adriano Terranova was kiled on October 12 2007 at approximately 4:00 PM at the intersection of Newbridge Road and Old Country Road when , while riding his bicycle , he collded with a bus owned by the MSBA. At the time of the collsion , Adrinao Terranova was riding seeks to recover for, [* 2] southbound on Newbridge Road and the bus was negotiating a right turn from a dedicated right hand turn lane on southbound Newbridge Road onto westbound Old Country Road. The plaintiff fied a Notice of Claim on January 15 2008 , in which he represented that the nature of the claim was to recover for personal injuries, conscious pain and suffering and wrongful death as the result of a motor vehicle accident caused by the "negligence recklessness , gross negligence , vicarious liabilty and other culpable conduct of the (defendants) in the operation , maintenance and control of their. . . bus. . . in causing a collsion between the bus with the bicycle and the body of (Adriano Terranova), in running (him) over and causing his consequent death at the scene of the occurrence. . . . Allegations that the County is at fault for negligently intrusting the bus to the driver and negligent hiring and supervision were not advanced in the Notice of Claim or the complaint. Those allegations were first made by the plaintiff-in his Verified Bil Particulars and Supplemental Bil of Particulars. The plaintiff s claims for negligent entrustment, hiring and supervision fail on account of the plaintiffs failure to advance that claim in his Notice of Claim. Demorcy v see also , Semprini v Vilage City of New York Southampton , 48 AD3d 543 (2 Dept 2008). In any event , the Lease and Operating Agreement between the County and the MSBA afforded the MSBA the "unqualified right" to " hire and appoint such officers and employees as it may require for the performance of its duties; to fix and determine their qualifications , duties and compensation; . . . (to) otherwise establish and from time to time alter their conditions of employment" and to " do all other things it may deem necessary, convenient or desirable in the conduct" of its business. MSBA is given full and exclusive control over its business and financial affairs and is solely responsible for the maintenance and repair of leased buses. Therefore , the County could not have hired or supervised the bus driver or entrusted the bus to him. Maintenance of the bus however would present an issue of fact at this juncture had it been properly advanced. 388 renders owners of vehicles used or operated in this state liable for the death of or injuries to persons or property resulting from the negligent use or operation of their vehicles in the business of such owner or otherwise by any person using or operating the vehicle with their express or implied permission. Nevertheless 30106) provides: An owner of a motor vehicle that rents or leases the vehicle to a , 137 AD2d 650 (lst Dept 1988); Vehicle and Traffic Law , the Graves Amendment (49 USC [* 3] person (or an affiiate of the owner) shall not be liable under the law of any State or political subdivision thereof, by reason of being the owner of the vehicle (or an affiliate of the owner), for harm to persons or propert that results or arises out of the use , operation or possession of the vehicle during the period of the rental or lease if - (1) the owner (or affiliate of the owner) is engaged in the trade or business of renting or leasing motor vehicles; and (2) there is no negligence or criminal wrongdoing on the part of the owner (or the affiliate of the owner). If applicable , this federal statute preempts the vicarious liability imposed by Vehicle and app dism , 10 Qrham v Duffy , 50 AD3d 55, 58 (2 st Hernandez v Sanchez 40 AD3d 446 447 (1 Dept 2007); Kuryla v Halabi , 39 AD3d 485 (2 Murphy v Pontilo , 12 Misc 3d 1146 (Supreme Court Nassau County 2006). The County' s leasing of the bus involved in the accident to the MSBA would prelude the imposition of liabilty pursuant to the Graves Amendment. However , the County has not established that the bus involved fell within the parameters of its lease with the MSBA. The County has only established that it entered into a Lease and Operating Agreement in 1973 with the MSBA which certainly encompassed motor vehicles. That Lease and Operating Agreement also contemplated the County' s leasing and assigning of " rollng stock" to the MSBA with the approval of the MSBA and in the manner therein provided. That Agreement provides: "the lease and assignment of the leased assets shall be effected without further act by the annexation to this Agreement , with the written approval of the County and the Authority endorsed thereon in each instance , of an exhibit identifying the particular leased assets then being subjected to the terms and conditions of this Agreement. . .. It also provides: " if the County shall determine from time to time to acquire. . . capital assets , including omnibus rollng stock , with the intention of including the same in the coverage of this Agreement the County shall in each instance submit the proposed contract or purchase order , together Traffic Law 388. Dept 2008), NY3d 385 (2008); citing Dept 2005); [* 4] with the plans and specifications , to the Authority for its prior written approval and shall permit the Authority, at its option , to take part in the supervision ofthe performance of the work." The bus involved in the accident in question has not been shown to be within those parameters of the Lease. Turning to the plaintiff s motion , the Preliminary Conference Order required all summary judgment motions to be made within 30 days of the filing of the Note ofIssue. The Note of Issue was fied on April 5, 2011. The plaintiffs motion which was made on August 3 Deberr- Hall v County of Nassau , 88 AD3d 634 , 635 (2 Miceli v State Farm Mut. Auto Ins. Co , 3 NY3d 725 Bril v City of New Y or)& , 2 NY3d 648 Castro v New York City Health & Hosps. Corp , 74 AD3d 1005 , 1006 (2 see also Van Dyke v Skanska USA Civ. Norteast. Inc. , 83 AD3d 1049 (2 Dept 2011). The motion is not " nearly identical" to the County' s motion and canot be Compare Ianello v O' Connor 58 AD3d 684 (2 Dept 2009). Therefore , the plaintiff must demonstrate good cause for his failure to timely fie his Deberry- Hall v County of Nassau supra, at p. 635 (citations omitted). Since the plaintiff has failed to do so Miceli v State Farm Mut. Auto Ins. Co. supra Deberr- Hall v County of Nassau supra . The court notes that the motion would be denied had it been timely as issues of fact abound. In conclusion , the plaintiffs motion is denied as untimely. The County has established its entitlement to summary judgment dismissing the claim for negligent entrustment , hiring and supervision and those claims are dismissed. The County has not established its entitlement to summary judgment dismissing the complaint against it pursuant to the Graves Amendment. That portion of the motion is denied , without prejudice. , 2011 is untimely. Dept 2011), citing 727 (2004); , 652 (2004); Dept 2010); saved on that ground. motion. , this motion is denied. This constitutes the Order of the Court. Dated: April 27, 2012 ENTERED JUN 04 2012 NASSAU COUNTY COUNTY CLERK' S OFFICE

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