Green v Metropolitan Transp. Auth. Bus Co.

Annotate this Case

Download PDF

Green v Metropolitan Transp. Auth. Bus Co. 2013 NY Slip Op 32398(U) October 7, 2013 Sup Ct, New York County Docket Number: 400725/12 Judge: Arlene P. Bluth Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] SCANNED ON 101812013 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: - - PART '7 2- Justice - Index Number 400725/2012 GREEN, SWITZERLAND vs. METROPOLITAN TRANSPORTATION SEQUENCE NUMBER : 002 INDEX NO. MOTION DATE MOTION SEQ. NO. SUMMARY JUDGMENT The following papers, numbered 1 to - 7 ,were read on this motion to/for L5b&?? #'?kq &"-2+7-d- d M I/&. IW s )-. . . Replying Affidavits Upon the foregoing papers, it is ordered that this motion is FILED &c" OCT 08 2013 COUNTY CLERK'S OFFICE NEW YORK /-+i 1. CHECK ONE: ..................................................................... 2. CHECK As APPRoPRIATE: ...........................MOTION is: 3. CHECK IF APPROPRIATE: 0 CASE DISPOSED GRANTED DENIED ; a O , N T E D IN PART C? OTHER SUBMIT ORDER ................................................ 0SETTLE ORDER 0DO NOT POST 0FIDUCIARY APPOINTMENT 0REFERENCE [* 2] SUPREME COURT OF THE STATE OF NY COUNTY OF NEW YORK: PART 22 Index No.:400725/12 Mot Seq 002 Switzerland Green, Plaintiff, -against- Metropolitan Transportation Authority Bus Company, Isael Reyes, Tyese Laws and Samantha Santiago, Defendants, DECISION/ORDER HON. ARLENE P. BLUTH, JSC ChJ OCT 08 2013 Defendants Laws and Santiago move for summary judgment dismlsslngu N T & t g ~ ~ ~ ~ ~ C o t them on the grounds that they are not liable for plaintiff accident; defendants Metropolitan Transportation Authority Bus Company(MTA) and Reyes, the bus driver, cross-move for the same relief, In this action, plaintiff alleges that on April 8,201 1 she was sleeping on a bus and awoke to discover that the bus hadbeen involved in an accident on Bruckner Boulevard in the Bronx. Reyes, the bus driver, claims that as he was proceeding in the right lane, a red van jumped the guard barrier in order to enter the Expressway, he moved the bus from the right lane into the left lane to avoid an impact, and then struck the vehicle driven by defendant Laws and owned by Santiago. In order to prevail on its motion for summary judgment, the movant must make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence, eliminating all material issues of fact. Alvarez v Prospect Hospital, 68 NY2d 320, 508 NYS2d 923 (1986). Once the movant demonstrates entitlement to judgment, the burden shifts to the opponent to rebut that prima facie showing. Bethlehem Steel Corp. v Solow, 5 1 NY2d 870, 872, Page 1 of 4 [* 3] 433 NYS2d 1015 (1980). In opposing such a motion, the party must lay bare its evidentiary proof, Conclusory allegations are insufficient to defeat the motion; the opponent must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact. Zuckerman v Ct ofivew York, 49 NY2d 557 at 562,427 NYS2d 595 (1980). iy In deciding the motion, the court must draw all reasonable inferences in favor of the nonmoving party and must not decide credibility issues. (Dauman Displays, Inc. v Masturzo, 168 AD2d 204,562 NYS2d 89 [lst Dept 19901, Zv. denied 77 NY2d 939,569 NYS2d 612 [1991]). As summary judgment is a drastic remedy which deprives a party of being heard, it should not be granted where there is any doubt as to the existence of a triable issue of fact (Chemical Bank v West 95th Street Development Corp., 161 AD2d 21 8,554 NYS2d 604 [lst Dept 1990]), or where the issue is even arguable or debatable (Stone v Goodson, 8 NY2d 8,200 NYS2d 627 [ 19601). In support of the motion, Laws submits his affidavit (exh F) stating that the MTA bus swerved into his lane (the left lane), struck his vehicle and pinned his vehicle to the wall. In support of the cross-motion, the driver Reyes submits his affidavit (exh E) stating that he was proceeding in the right lane of the roadway at 15-20 miles per hour with cars behind him and to the left of him but he does not say ifthere were any cars to his right when suddenly a red van jumped the guard barrier in order to enter the Expressway and cut in front of the bus. Reyes states that he immediately moved the bus to the left in order to avoid the van, and hit the vehicle driven by Laws. Significantly Reyes did not say that he looked to the right to see if he could safely pull to into the right merging lane to avoid a collision; if the red van could jump the barrier, certainly a bus could do the same. See Rahimi v Manhattan and Bronx Surface Transit Operating Authority, 43 AD3d 802,803-804,843 NYS2d 557, 559 (1st Dept 2007) (summary Page 2 of 4 [* 4] judgment appropriate only where there is no evidence that the bus driver could have avoided a collision by taking some other action). Accordingly, defendants MTA and Reyes have not satisfied their burden of establishing entitlement to judgment as a matter of law, and the burden never shifted to plaintiff to oppose the cross-motion. Plaintiffs sole ground for opposing the main motion of defendants Laws and Santiago, is that Laws (who submitted his affidavit) and Santiago (the owner of the vehicle who did not witness the accident) have not been deposed. Significantly, not a single fact in Laws s affidavit is contested. There is no affidavit from plaintiff, and no affidavit from any other witness, either. There is only an affirmation from plaintiffs attorney, who has no personal knowledge. Rather than laying bare his proofs, counsel asserts that this motion should be denied simply because depositions have not yet been held; this fails to set forth grounds for this Court to deny this motion. Plaintiff has failed to show that discovery may lead to relevant evidence or that facts essential to justif4r opposition to the motion are exclusively within the knowledge or control of the Reyes and Santiago. See G r D n v Pennoyer, 49 AD3d 341,852 NYS2d 765 (Ist Dept 2008) (because defendant failed to demonstrate that facts essential to justify opposition to the motion may exist but could not be stated [see CPLR 3212(f)], plaintiffs pre-discovery motion for partial summary judgment was not premature). Put another way, the mere hope that evidence sufficient to defeat a motion for summaryjudgment may be uncovered during the discovery process is insufficient to deny such a motion. Flores v Ct oflvew York, 66 AD3d 599. 888 iy NYS2d 27 (lstDept. 2009). See also Beamud v Gray, 45 AD3d 257,844 NYS2d 269-270 (1 Dept 2007) ( Plaintiffs made a prima facie showing of their entitlement to judgment as a matter of law by demonstrating they were crossing the street, within the crosswalk, with the light in Page3of 4 [* 5] their favor, when they were struck by defendant svehicle, which was making a left turn. Defendant s unsupported speculation as to plaintiffs alleged comparative negligence was insufficient to raise an issue of fact [citations omitted] ). Thus, with respect to the main motion, plaintiff failed to meet her burden of presenting the existence of an issue of fact which would require a jury to determine. Accordingly, it is hereby ORDERED that defendants Laws and Santiago s motion for summary judgment dismissing the complaint as against them is granted, and the Clerk of Court and the Trial Support Office are directed to mark the court files accordingly and remove the names of these defendants from the caption; and it is hrther ORDERED that defendants Metropolitan Transportation Authority Bus Company and Reyes cross-motion for summary judgment dismissing the complaint against them is denied. The remaining parties are directed to appear for a compliance conference on Monday, October 28,2013 in DCM Part 22, 80 Centre Street, Room 103 at 9:30am. This is the Decision and Order of the Court. Dated: October 7,2013 New York, New York FILED \d d 1 OCT 08 2013 COUNTY CLERKS OFFICE NEW YORK Page 4 of 4

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.