Cotton v Wayne Area Transp. Serv., Inc.
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Cotton v Wayne Area Transp. Serv., Inc. 2014 NY Slip Op 33398(U) December 29, 2014 Supreme Court, Wayne County Docket Number: 77108/2014 Judge: Dennis M. Kehoe 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] STATE OF NEW YORK SUPREME COURT COUNTY OF WAYNE W ILLIE COTTON , ECISION AND RDER Plaintiff, -vsWAYNE AREA TRANSPORTATION SERVICE, INC. (WATS)/ROCHESTER GENESEE REGIONAL TRANSPORTATION AUTHORITY (RGRTA), Defendants Ind x No. 77108 0<. ()I if- Douglas M. Jablonski, Esq. Attorney for Plaintiff Leclair, Korona, Giordano, Cole, LLP Laurie A. Giordano, Esq. Attorneys for Defendants The Defendants have moved for an Order pursuant t CPLR §3211 (a)(8) and §3211 (a)(7), dismissing the Plaintiff's acti n for lack of personal jurisdiction over the Defendants and for failure to tate a cause of action. The Plaintiff has opposed the motion in its entirety. In this action, the Plaintiff SE~eks damages for person I injuries he allegedly incurred on February 8, 2013 in the County of W yne as a permitted passenger on a bus owned and/or operated by t e Defendants. The Plaintiff maintains that as he was exiting the bus, he fell "due to a misplaced transportation securin~J strap" located on the flo r of the bus, as -1- [* 2] a result of which he was physically injured. In his Complai t, the Plaintiff alleges that the accident was caused "solely by the wrongf I, careless and negligent acts and omissions of Defendants .... ". As to the alleged lack of personal jurisdiction over the Defendants, counsel for the Defendants concE?ded at oral argument tha , in addition to the "courtesy letter" initially sent to the Loss Prevention Ma ager by counsel for the Plaintiff, the Defendants were subsequent! properly served with copies of the Summons and Complaint. Therefore, personal jurisdiction is not an issue, and that portion of the Defenda ts' motion to dismiss is denied. The Defendants also argue that the Complaint should be dismissed for failure to state a cause of action. Specifically, the Defendants maintain that the Plaintiffs Complaint is defective on its face, due to the Plaintiffs failure to allege that he suffered a "serious injury", as requi ed by CPLR §3016(g). The Defendants contend that the Complaint mu t be dismissed for failure to plead with the particularity required by statutory law. CPLR §3016(g) provides in part that "for personal inj Iries arising out of negligence in the use or operation of a motor vehicle in his state, the Complaint shall state that the plaintiff has sustained a serious injury", as -2- [* 3] required by Insurance Law §5104(a). (emphasis added). owever, in his opposing affidavit, counsel for the Plaintiff contends that th accident was I caused by the fact that the Plainti'ff allegedly fell as he was xiting the bus due to "a misplaced transportation strap on the floor of the us". Therefore, it is the Plaintiff's position that the accident did not arise from the "use or operation" of the bus. The Plaintiff relies on Ian uage in Cividanes v Citv of New York, 20 NY3d 925(2012), in whic the Court of Appeals reiterated the requirement that the use or operatic of a vehicle must be a "proximate cause" or a11 "instrumentality" that pr duced the plaintiff's injury. Counsel for the Defendants maintains that the Plainti has failed to state a cause of action because he does not allege sufficiei t facts in his Complaint to support a claim that his injuries arose from th use or operation of a vehicle. However, in his response, counsel or the Plaintiff appears to argue that Plaintiff's claim does not arise from tme use or operation of the bus; rather the Complaint seems to be gro nded on a theory of ordinary negligence. The Plaintiff relies on a number of decisions such as Cividanes, in which the courts have held that the v hicle was not a proximate cause of the injury. However, in those cases, th claimant was -3- [* 4] injured due to external factors, in a manner unrelated to th vehicle itself. (such as a passenger stepping into a hole outside a bus w~ile departing the vehicle). (See Cividanes, supra). While it is true that not every injury occurring in or near a vehicle is covered by the phrase "use or operation", if an accident ariies out of the "inherent nature of the vehicle" and if "the vehicle itself pro uces the injury", then the "use or operation" requirement would appe r to invoke the application of the No-Fault statute. (See, e.g. , Empire Insurance Co. v Schliessman. et al, 306 AD2d 512 (2"d Dept, 2003)). In this action, the Complaint provides few details regarding the circumstances surrounding the accident. However, discovery has yet to be conducted , and those details will emerge as the action progresses. At this early tage, the Defendants will suffer no prejudice by allowing the Plaintiff o amend his Complaint pursuant to CPLR §3025 by adding a second ca se of action alleging serious injury. In summary, the Court deniies the Defendants' MotiorJ to Dismiss in its entirety. However, the Plaintiff is directed to file and serve an Amended Complaint, setting forth a second cause of action in the alternative, alleging a serious injury in accordance with CPLR §3016(g). As st1ted above, after -4- [* 5] discovery is completed and additional facts are made avail ble, further motions may prove to be appropriate. Also, the Plaintiff is directed to delete the sum certain requested as relief in the "Wherefor " clause in the Complaint. This Decision constitutes the Order of the Court. Dated: December 29, 2014 Lyons, New York Honorable Dennis M. Kehoe Acting Supreme C urt Justice ..,_-; c:. -0 Ul '--. :c- :::xJ m :.t fTI );.. ~ I -.J -0 w (,j w -5- c :;;;,
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