Campbell v New York City Tr. Auth.

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Campbell v New York City Tr. Auth. 2012 NY Slip Op 33103(U) December 27, 2012 Sup Ct, New York County Docket Number: 109866/10 Judge: Michael D. Stallman 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] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: Hon. MICHAEL D. STALLMAN PART 21 Justice INDEX NO. LAWRENCE CAMPBELL, as Executor of the Estate of MARGARITA CAMPBELL, deceased, 109866/10 MOTION DATE 9/24/12 Plaintiff, MOTION SEQ.NO. -v- NEW YORK CITY TRANSIT AUTHORITY, MANHATTAN AND BRONX SURFACE TRANSIT OPERATING A U m O R m , METROPOLITAN TRANSPORTATION AUTHO ITY, COMPANY, and JEAN-JACQUES DORLY, /? oefenjants. rL E D JAN 0 4 2013 0 The following papers, numbered Ito Notice of Motion- Affirmation Affirmation in Opposition 1 i - - Exhibits A-D -Affidavit Reply Affirmation - Exhibit A 003 -Affidavit of Service of Service IN 4 . INOW. 4-5 6-7 Upon the foregoing papers, it is ordered that plaintiff s motion for partial summary judgment on the issue of liability against defendants MTA Bus Company and Jean-Jacques Dorly is denied. Inthis action, plaintiffalleges that, on April 6,201 0, decedentwas struck while crossing in the cross walk at the intersection of First Avenue and East 57 Street in Manhattan, and that she died due to her injuries on April 9,201 0. Previously,plaintiff unsuccessfullymovedfor partial summaryjudgment as to liabilityagainst defendants MTA Bus Company and JeanJacques Dorly. Inthe prior decisionand order dated July 6,201 1,this Court did not consider video footage of the incident, because the DVDwas submittedfor the first time in reply (See Delaney Affirm., Ex D.) a I Plaintiff again moves for partial summaryjudgment on the issue of liabilityagainst defendants MTA Bus Company and JeanJacques Dorly. This (Continued. Page 1 of 5 . ) [* 2] Campbell v New York City Tr, Auth., Index No. 10986612010 time, the video footage is included in plaintiffs moving papers, along with the deposition testimony of Dorly, taken after the prior motion. Plaintiff contends that the testimony and evidence establish that Dorly failed to yield the right of way to decedent as she crossed the street in violation of Vehicle and Traffic Law 8 1111, and that Dorly made an improper left turn in violation of Vehicle and Traffic Law 5 1160 (c). As plaintiff indicates, a violation of a standard of care imposed by the Vehicle and Traffic Law constitutes negligence per se (Barbieri v Vokoun, 72 AD3d 853,856 [2d Dept 20101.) Defendants oppose the motion, on the ground that successive motions for summary judgment are not permitted. Plaintiff argues that the second motion is permissible to correct defects in the first motion, citing Landmark Capital lnvestmenfs, lnc. v Li-Shan Wang (94 AD3d 418,419 [Ist 20121.) Dept Plaintiff also claims that the deposition testimony of Dorly, which was not available at the time of the original motion, constitutes newly discovered evidence I Successive motions for summary judgment should not be entertained without a showing of newly discovered evidence or other sufficient justification. (Jones v 636 Holding Corp., 73 AD3d 409,409 [lst Dept 20101.) Here, the deposition testimony of Dorly should be considered newlydiscovered evidence, It did not exist at the time of plaintiff s prior motion, and unlike the testimony that Dorly gave at hearings before the Department of Motor Vehicles, defendants had an opportunity to examine Dorly at his EBT. Therefore, the Court exercises its discretion to permit this motion. A party seeking summary judgment has the burden of tendering evidence in admissible form demonstrating the absence of any triable issues of fact. To succeed on a cause of action to recover damages for wrongful death, the decedent s personal representative must establish, inter alia, that the defendant s wrongful act, neglect or default caused the decedent s death. Although a plaintiffs burden of proof in a wrongful death case is reduced because the decedent is unable to describe the events in question (see Noseworthy v City of New York, 298 NY 76,80 . (Continued . . ) Page 2 of 5 [* 3] Campbell v New York City Tr. Aufh.,Index No. 109866/2010 [1948]), the plaintiff is still obligated to providesome proof from which negligence can reasonably be inferred. (Roth v Zelig, 64 AD3d 558, 559 [2d Dept 20091.) As a threshold matter, the Court disagrees with defendants contention that the Noseworthydoctrine does not apply on this motion. As defendants indicate, the Nosewodhy doctrine is inapplicablewhere the parties were on equal footing with respectto knowledge of the occurrence. (Morris vSolow Management Corp. Townhouse Co., L.L.C., 46 AD3d 330,331 [ l s t Dept 20071 [citations omitted].) However, the existenceof video footage of the accident does not place plaintiff on equal footingwith respect to the parties knowledge of the occurrence. [Tlhe standard set forth in Noseworthy applies only to such factual testimony as the decedent might havetestified to, had [slhe lived. (Stewaut v Olean Medical Group, P,C., 17 AD3d 1094, I [4thDept 20051; Feltus v 096 Sfaten 1s. Univ. Hosp., 285 Ad2d 445 [2d Dept 20011; cf. Bin Xin Tan v St. Vincent s Hosp., 294 AD2d 122,123 [st Dept20023 [ plaintiff was not entitled I to a Noseworfhychargebecausedecedent could not havetestified concerning the cytologist s alleged misdiagnosisor whether Dr. Yee and Mt. Sinai should have conducteda tissue biopsy].) Here, the decedent s testimony of how the accident occurred might have been consistent with plaintiff s counsel s assertionof what i depicted in the video footage. However, the video footage s does not place plaintiff on the equal footing with defendants becausethe video footage is not from the vantage point of the decedent, or that of defendant Dorly, Ittherefore does not substitutefor the factual testimony of decedent as to what she had seen when she crossed the street. Turning to the merits, Vehicle and Traffic Law 5 1160 (c) provides, At any intersectionwhere traffic is restrictedto one directionon one or more of the roadways, the driver o a vehicle intending to f turn left at any such intersectionshall approach the intersectionin the extreme left-hand lane of the roadway lawfully availableto traffic moving in the direction of travel of such vehicle.. . and after entering the intersectionthe left turn shall be made so as to leave the intersection, as nearly as practicable, inthe left-handlane (Continued.. . ) Page 3 of 5 [* 4] Y Campbell v New York City Tr. Auth., Index No. 109866/2010 lawfully available to traffic moving in such direction upon the roadway being entered. Here, an issueof fact arises as to whether the manner in which Dorly made the left turn for a bus was permissible under Vehicle and Traffic Law 5 1160 (c). Defendantscite the New York State Departmentof MotorVehicles Commercial Driver s Manual,which states, in pertinent part, If there are two turning lanes [for a left turn], always take the right turn lane. Don t start in the inside lane becauseyou may haveto swing rightto make the turn. Drivers on your left can be more readily seen. See Figure 2.14. (Wong Opp. Affirm., Ex C.) Figure 2.14 depicts an arrow, representing a leftturn, that begins in the rightturn lane, which is completed in the far right lane of traffic. (See id.) Although plaintiff objects to the excerpts of the Commercial Driver s Manualas not being in admissibleform (Delaney ReplyAffirm. 7 32),plaintiff does not dispute its authenticity. Thus, on this motion, [tlhe lack of certification, in the circumstances, is at most a technical irregularitywhich may be disregarded. (Borchardt vNew York Life Ins. Co., 102 AD2d 465,467 [sl I Dept], aWd63 NY2d I000 [9841 [allowing uncertified hospital record to be I considered on a motion for summary judgment].) Contrary to plaintiff s argument, Dorly s conviction for the traffic infraction of making an illegal left turn may not be used as evidence of negligencehere. Plaintiffcites no authority for such a proposition. Vehicle and Traffic Law 5 155states, in pertinentpart, A traffic infractionis not a crime and the punishment imposedtherefor shall not be deemed for any purpose a penal or criminal punishment and shall not affect or impairthe credibilityas a witness or otherwise of any person convicted thereof. That section has been construedto preventthe disclosure of a conviction for a traffic infraction on the ground that the statute (Continued. I . ) I In the prior decision and order, plaintiff unsuccessfully argued that defendants MTA BUS Company and Dorly were collaterally estopped from disputing that Dorly violated Vehicle and Traffic Law $ 1160. There is no legal basis for relitigating this Court s prior decision and order on this issue. Page4 of 5 [* 5] Campbell v New York City Tr, Auth., Index No. IO986612010 expresses a broad public policy not to employ it as evidence-in-chief to establish negligence in the civil action. The reason supporting that view i that to make such use of it is s likely to impair the right of a defendant to a fairtrial on the issue of c iviI negIigence. (Augustinev Village oflnterlaken, 68 AD2d 705,710 [4thDept 19791, quoting Walther v News Syndkate Ca,276 AD 169, 175-176 [ l s t Dept 19491 [emphasis supplied].) Therefore, plaintiff has not demonstrated, as a matter of law, that Dorly s operation of the bus was a violation of Vehicle and Traffic Law 3 1160 (c). Under Vehicle and Traffic Law 8 I 1Ithe pedestrianhas the right of way I , when crossing with the pedestrian light in a crosswalk. (Rudolf v Khan, 4 AD3d 408,409 [2nd Dept 20041.) Although a driver facing a steady green light is entitled to proceed, he or she has a duty to yield the right-of-way to pedestrians lawfully within a crosswalk (see Vehicle and Traffic Law § l l l l [ a ] [ l ] ). (Barbieri, 72 AD3d at 855.) Here, having reviewed the video footage, this Court cannot rule, as a matter of law, that either party was, or was not, negligent. The Court cannot determine that, as a matter of law, the decedent had the right of way when crossing the street, or that she was in a crosswalk, or and that Dorlyfailed to yield the right of way to the decedent. Negligence cases by their very nature do not usually lendthemselves to summaryjudgment, since often, even if all parties are in agreement as to the underlying facts, the very question of negligence is itself a questionfor jury determination. (Ugarizzav Schmieder, 46 NY2d 471,474 [1979]). ~ I Therefore, plaintiffs decol(Eirlob&m Dated: JAN NWYURK ................................................................ 2. Check if appropriate: ............................ MOTION IS: 3. Check if appropriate: ................................................ I Check one: . @@&- 0GRANTED DENIED fl SETTLE ORDER .,- I n I NON-FINAL DISPOSITION I GRANTED IN PART 0OTHER . I .I Page 5 of 5 .. . . r,+, ,

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