Rios v Washington

[*1] Rios v Washington 2006 NY Slip Op 52500(U) [14 Misc 3d 1212(A)] Decided on August 18, 2006 Supreme Court, Bronx County Billings, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 18, 2006
Supreme Court, Bronx County

Lunasol Rios and Cynthia A. Rios, Plaintiffs

against

Noel C. Washington, Howard G. Washington, Advance Transit Bus Company, Inc., and Jose Pantigoso, Defendants.



21483/2004



For Plaintiffs

Franklin H. Blumenfeld Esq.

333 East 149th Street, Bronx, NY 10451

For Defendants Advance Transit Bus Company and Pantigoso

Mark A. Puleo Esq.

Burke, Lipton, Puleo, McCarthy & Gordon

10 Bank Street, White Plains, NY 10606

Lucy Billings, J.

I.BACKGROUND

Plaintiffs sue to recover for personal injuries and loss of services sustained June 20, 2004, when a vehicle owned by defendant Noel Washington and operated by defendant Howard Washington struck plaintiff Lunasol Rios, as he loaded luggage into a bus owned by defendant Advance Transit Bus Company, Inc., and operated by defendant Pantigoso. Defendants Advance Transit Bus and Pantigoso move for summary judgment dismissing the complaint and cross-claims against these defendants, C.P.L.R. § 3212(b), on the ground that the other defendants were solely responsible for plaintiffs' injuries. Plaintiffs cross-move for summary judgment against all defendants on their liability for the injuries. C.P.L.R. § 3212(b) and (e).

Upon oral argument, for the reasons explained below, the court grants plaintiffs' cross-motion to the extent of (1) holding the Washington defendants liable to plaintiffs for the impact with the pedestrian Rios and the resulting injuries and (2) determining the remaining defendants' negligence as a matter of law. The court also grants the motion by defendants Advance Transit Bus and Pantigoso to the extent of holding the Washington defendants liable to the moving defendants for contribution. The court otherwise denies the motion and cross-motion. Id.

II.DEFENDANTS' LIABILITY FOR THE IMPACT [*2]

Moving defendants claim that Howard Washington's negligence superseded any negligence on their part. Plaintiffs claim that moving defendants as well as the Washington defendants are negligent because the former violated both a statute and a traffic rule and that the negligence by both sets of defendants contributed to plaintiffs' injuries.

A.Non-Moving Defendants' Liability

At the outset, Howard Washington's admission that he stopped behind moving defendants' double parked bus and observed Lunasol Rios loading the bus for several minutes before Washington inadvertently accelerated and struck Rios establishes the Washington defendants' negligence and causation of plaintiffs' injuries. Therefore the court grants plaintiffs' cross-motion for summary judgment against defendants Noel Washington and Howard Washington on their liability for the impact to Rios and resulting injuries and also grants co-defendants' motion insofar as it seeks summary judgment on their cross-claims for contribution against the Washington defendants, without opposition.

B.Moving Defendants' Violation of a Statutory Duty

The parties do not dispute that moving defendants' bus was double parked. New York Vehicle and Traffic Law (VTL) § 1202(a)(1)(a) prohibits double parking:

Except when necessary to avoid conflict with other traffic, or when in compliance with law or the directions of a police officer or official traffic-control device, no person shall:

1.Stop, stand or park a vehicle:

a.On the roadway side of any vehicle stopped, standing or parked at the edge or curb of a street . . . .

Similarly, 34 R.C.NY § 4-08(f) provides:

No person shall stand or park a vehicle in any of the following places, unless otherwise indicated by posted signs, markings or other traffic control devices, or at the direction of a law enforcement officer:

(1)Double parking. On the roadway side of a vehicle stopped, standing, or parked at the curb . . . .

Thus double parking not only is evidence of negligence, as a violation of the city traffic regulation, 34 R.C.NY § 4-08(f)(1), Schneider v. Diallo, 14 AD3d 445, 446 (1st Dep't 2005); Cruz v. City of New York, 13 AD2d 254 (1st Dep't 2004); Murray-Davis v. Rapid Armored Corp., 300 AD2d 96 (1st Dep't 2002); Adriano v. Manhattan & Bronx Surface Tr. Operating Auth., 250 AD2d 541, 542 (1st Dep't 1998), but, as a violation of a state statute, VTL § 1202(a)(1)(a), is negligence per se. Elliott v. City of New York, 95 NY2d 730, 734 (2001); Plaut v. Allright Parking Mgt., Inc., 18 AD3d 396, 397 (1st Dep't 2005); Garcia v. Verizon NY, Inc., 10 AD3d 339, 340 (1st Dep't 2004); Sherman v. City of New York, 206 AD2d 272, 274-75 (1st Dep't 1994). See Baldwin v. Degenhardt, 82 NY2d 867, 869 (1993); Sheila C. v. Povich, 11 AD3d 120, 131-32 & n.2 (1st Dep't 2004); Gross v. New York City Tr. Auth., 256 AD2d 128, 130 (1st Dep't 1998).

Although moving defendants' failure to activate the lights on the bus in violation of VTL §§ 375-76 also would constitute negligence, the parties presented no evidence whether the impact to Rios occurred between 30 minutes after sunset and 30 minutes before sunrise, VTL §§ 375(2)(a), 376(1)(a), or when the bus was manufactured. VTL §§ 375(2)(a), (18-a), and (19), 376(1)(a). Moving defendants thus fail to demonstrate the inapplicability of these provisions, just as plaintiffs fail to demonstrate the provisions' applicability, as would be necessary either to negate or to establish negligence on this basis. Wyckoff v. Jujamcyn Theaters, Inc., 11 AD3d 319, 320 (1st Dep't 2004); Herrera v. Persaud, 276 AD2d 304, 305 (1st Dep't 2000). [*3]

Nevertheless, moving defendants' violation of the statute and rule prohibiting double parking establishes their negligence. These violations in turn raise the issue whether, but for defendants' negligent double parked position, Howard Washington would not have had to stop and wait behind the bus, and bus passengers like Lunasol Rios would not have had to stand in the roadway to load their luggage and be subject to injury. Ferrer v. Harris, 55 NY2d 285, 293-94 (1982); Schneider v. Diallo, 14 AD3d 445; Murray-Davis v. Rapid Armored Corp., 300 AD2d 96. See Sidra v. Burpoe, 256 AD2d 51 (1st Dep't 1998); Romeo v. DeGennaro, 255 AD2d 208 (1st Dep't 1998).

C.Proximate Cause

Only if Washington's intervening negligence was so extraordinary or attenuated from moving defendants' own negligence as to have been unforeseeable, would his conduct be a superseding cause severing their liability. Maheshwari v. City of New York, 2 NY3d 288, 295 (2004); Egan v. A.J. Constr. Corp., 94 NY2d 839, 841 (1999); Derdiarian v. Felix Contr. Corp., 51 NY2d 308, 315 (1980); Hoenig v. Park Royal Owners, 249 AD2d 57, 58 (1st Dep't 1998). See Sidra v. Burpoe, 256 AD2d 51. If Washington's intervening negligence was a foreseeable result of circumstances moving defendants themselves created, they remain liable. Lynch v. Bay Ridge Obstetrical & Gynecological Assocs., 72 NY2d 632, 636-37 (1988); Emanuel v. Sheridan Transp. Corp., 10 AD3d 46, 57-58 (1st Dep't 2004); Toyos v. City of New York, 304 AD2d 319, 320 (1st Dep't 2003); Gross v. New York City Tr. Auth., 256 AD2d at 130.

Positioning the bus, even partially, in the street's travel lane, requiring Lunasol Rios to stand there to load the bus through its rear door, foreseeably exposed him to being struck by a vehicle such as the Washingtons', travelling in that lane and approaching the bus from behind. Toyos v. City of New York, 304 AD2d at 320; Gross v. New York City Tr. Auth., 256 AD2d at 130; Pagowski v. Martinez, 197 AD2d 400, 401 (1st Dep't 1993); Betancourt v. Manhattan Ford Lincoln Mercury, 195 AD2d 246, 248 (1st Dep't 1994). See O'Connor v. Pecoraro, 141 AD2d 443, 445-46 (1st Dep't 1988). The connection between the bus's position and Lunasol Rios's injuries are "logical and immediate enough" to permit a factfinder to find the statutory and regulatory violation a proximate cause of the impact with Rios. Ferrer v. Harris, 55 NY2d at 294; Schneider v. Diallo, 14 AD3d 445; Murray-Davis v. Rapid Armored Corp., 300 AD2d 96; O'Connor v. Pecoraro, 141 AD2d at 445. See Betancourt v. Manhattan Ford Lincoln Mercury, 195 AD2d at 248-49; Nutting v. Ford Motor Co., 180 AD2d 122, 131 (3d Dep't 1992). The bus's illegal position raises such factual issues as whether it obstructed its passengers' ability to observe oncoming traffic when loading their luggage or obstructed oncoming vehicles' ability to pass by, which preclude summary judgment. O'Connor v. Easyride, Inc., 26 AD3d 263, 264 (1st Dep't 2006); Bermudez v. Ruiz, 221 AD2d 196, 197 (1st Dep't 1995); Wooster v. Soriano, 167 AD2d 233 (1st Dep't 1990); O'Connor v. Pecoraro, 141 AD2d at 445-46. See Dowling v. Consolidated Carriers Corp., 65 NY2d 799, 801 (1985); Emanuel v. Sheridan Transp. Corp., 10 AD3d at 57-58; Toyos v. City of New York, 304 AD2d at 320; Betancourt v. Manhattan Ford Lincoln Mercury, 195 AD2d at 250. Because the factfinder must resolve these issues, the court may not conclude, as a matter of law, that moving defendants' negligence merely furnished an occasion for plaintiffs' injuries, rather than causing them. See Margolin v. Friedman, 43 NY2d 982, 983 (1978); Moncion v Infra-Metals Corp., Div. of Preussag Intl. Co., 20 AD3d 310, 312 (1st Dep't 2005); Spence v. Lake Serv. Sta., Inc., 13 AD3d 276, 278 (1st Dep't 2004); Hoenig v. Park Royal Owners, 249 AD2d at 59.

III.CONCLUSION

These very reasons exemplify why the trier of fact ordinarily must determine proximate cause. For the same reasons, the court denies both the motion by defendants Advance Transit Bus and Pantigoso for summary judgment dismissing the complaint against them, Levbarg v. City of New York, 282 AD2d 239, 241 (1st Dep't 2001), and plaintiffs' cross-motion for summary judgment insofar as it seeks to hold these defendants liable. Lynch v. Bay Ridge Obstetrical & Gynecological Assocs., 72 NY2d at 636-37; Thompson v. Mid-Westchester Constr. Group, 290 AD2d 341, 342 (1st Dep't 2002); DeLeon v. Rajon Co., 243 AD2d 366 (1st [*4]Dep't 1997).

Thus, the court grants summary judgment to plaintiffs against (1) the Washington defendants on their liability for the impact to Lunasol Rios and resulting injuries and (2) defendants Advance Transit Bus and Pantigoso on their negligence only. The court also grants summary judgment to moving defendants Advance Transit Bus and Pantigoso against the Washington defendants on moving defendants' cross-claims for contribution. The court denies the motion and cross-motion insofar as they seek any further relief.

DATED: August 18, 2006

_____________________________

Lucy Billings, J.S.C.