DeHoyos v City of New York

DeHoyos v City of New York 2014 NY Slip Op 07453 Decided on October 30, 2014 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 30, 2014
Tom, J.P., Sweeny, Andrias, Moskowitz, Gische, JJ.
13386 109491/11

[*1] George DeHoyos, Plaintiff-Appellant,

v

The City of New York, et al., Defendants, MTA Capital Construction Company, Defendant-Respondent.

Franzblau Dratch, P.C., New York (Brian M. Dratch of counsel), for appellant.

Amabile & Erman, P.C., Staten Island (Nicholas J. Loiacono of counsel), for respondent.

Order, Supreme Court, New York County (Margaret A. Chan, J.), entered May 7, 2013, which, to the extent appealed from, granted defendant MTA Capital Construction Company's motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

Plaintiff testified that as he was cycling south on Second Avenue in Manhattan a passenger in a double-parked livery cab opened the cab door directly into his path, whereupon he veered into the adjacent traffic lane and was hit by another vehicle. Plaintiff's contention that MTA's construction activities along Second Avenue obstructed his view of the cab until he was about 15 feet from it, and that if he had seen the cab from a greater distance the accident could have been avoided, is belied by his testimony that the cab door opened just as he was about to pass the cab. The opening of the cab door interrupted the nexus between any possible negligence on MTA's part and plaintiff's injuries and relieves MTA of any liability (see Kush v City of Buffalo, 59 NY2d 26 [1983]; Hoenig v Park Royal Owners, 249 AD2d 57 [1st Dept 1998], lv denied 92 NY2d 811 [1998]).

Plaintiff's speculative request for additional discovery to determine if there were other possible causes of the accident is insufficient to defeat the motion (Flores v City of New York, 66 AD3d 599, 600 [1st Dept 2009]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 30, 2014

CLERK