Fay v New York City Tr. Auth.

[*1] Fay v New York City Tr. Auth. 2016 NY Slip Op 50279(U) Decided on March 8, 2016 Supreme Court, New York County Stallman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 8, 2016
Supreme Court, New York County

Lisa Fay, Plaintiff,

against

New York City Transit Authority, METROPOLITAN TRANSPORTATION AUTHORITY, MANHANTATTAN AND BRONX SURFACE TRANSIT OPERATING AUTHORITY, BUS OPERATOR McKAY (first name unknown), JOSEPHINE ZAVOLAKIS and JOHN ZAVOLAKIS, Defendants.



159001/12



Appearances:

For Plaintiff—Seq. 002 Movant:

Roger Lavinsky, Esq.

Jaroslawicz & Jaros, LLC

225 Broadway, 24th Floor

New York, NY 10007

For Transit Defendants—Seq. 003 Movant:

John FK Coffey, Esq.

Coffey & Coffey of counsel to: Lawrence Heisler, Esq.

142 Joralemon Street, 2nd Floor

Brooklyn, NY 11201

For Zavolakis Defendants—Non-Movants

Patrick B. McKeown, Esq.

Roe & Associates

1055 Franklin Avenue — Suite 204

Garden City, New York 11530
Michael D. Stallman, J.

In this personal injury action, plaintiff Lisa Fay alleges that, on March 26, 2012 at [*2]approximately 8:20 a.m., she was a passenger on an M4 bus operated by defendant Laura McKay traveling west on 34th Street between 5th and 6th Avenues when the bus suddenly stopped short in response to a car owned by defendant Josephine Zavolakis and operated defendant John Zavolakis "U-turning" in front of the bus, causing plaintiff to fall. (Seq. 002 Moving Affirm. ¶ 2; Ex. E [Verified Amended Complaint] ¶¶ 28-30; Ex. G [Verified Bill of Particulars] ¶¶ 2-3; Ex. J [Fay EBT] at 9:9-22; Ex. K [McKay EBT] at 18:7-21.)

This decision determines two motion sequences, Seq. 002 and Seq. 003. In Seq. 002, Plaintiff Lisa Fay moves for summary judgment as to liability against defendants Josephine Zavolakis and John Zavolakis (Zavolakis defendants), finding defendants jointly and severally liable in this action because their illegal U-turn constituted negligence per se. (Seq. 002 Notice of Motion; Seq. 002 Moving Affirm. ¶ 4.) In Seq. 003, defendants New York City Transit Authority, Metropolitan Transportation Authority, Manhattan and Bronx Surface Transit Operating Authority, and Bus Operator McKay (Transit defendants) move for summary judgment, dismissing the complaint as against them, based on the emergency doctrine. (Seq. 003 Moving Affirm. ¶¶ 3, 13.)

BACKGROUND

Plaintiff alleges that on the morning of March 26, 2012, she was traveling to work on an M4 bus in clear weather conditions and light traffic. (Seq. 002 Moving Affirm. Ex. J [Fay EBT] at 9:9-10:13, 14:9-17, 24:7-18; Ex. K [McKay EBT] at 15:15-18, 20:10-16.) As the bus departed from its stop on 34th Street and Fifth Avenue heading west, plaintiff states that she stood up and began walking forward while holding onto the handrail in order to get off at the next stop. (Fay EBT at 21:14-22:19, 30:11-25.) Around this time, plaintiff asserts that she noticed that the bus appeared to be accelerating to about 20 miles per hour in order to beat a yellow traffic light. (Fay EBT at 29:15-20, 54:22-55:10, 67:12-68:5.) However, before plaintiff had taken more than three steps, plaintiff claims that the bus came to a sudden stop causing her to lose balance and fall forward, striking her hand on a pole or seat. (Id. at 24:25-25:13, 30:23-31:14.)

As plaintiff later learned from her fellow passengers, the bus came to sudden halt because another car had abruptly made a U-turn in front of the bus's path. (Id. at 26:09-17.) Defendant bus operator Laura McKay identified the U-turning vehicle as a red Hyundai Sonata, bearing New York license plate number BXW6419. (Seq. 002 Moving Affirm. Ex. L at Incident Report.) McKay asserts that, prior to the incident, she first noticed the red Hyundai parked in the bus only lane, roughly 25 feet ahead of the 34th Street and 5th Avenue bus stop where McKay paused to let off passengers. (McKay EBT at 20:22-22:16.)

McKay asserts that as she was leaving the 34th Street and Fifth Avenue bus stop and attempting to pull around the red Hyundai—because the Hyundai was parked in the bus lane—the red Hyundai "in a split second, . . . U-turned in front of me with no signal or anything, at which time I had to apply my brakes." (Id. at 26:15-17.) McKay further observed that the car was driven by a male, and that a female passenger exited the vehicle on the other side of the street. (Id. at 25:3-26:4.)

The Zavolakis defendants admit that around March 26, 2012, Josephine was the owner of a red Hyundai Sonata bearing New York license plate number BXW6419. (Seq. 002 Moving [*3]Affirm. Ex. N [Josephine EBT] at 9:05-10:09; Ex. O [John EBT] at 8:16-21, 9:18-10:09.) Josephine also admitted that no one other than herself and John operated their red Hyundai Sonata around the time of the accident. (Josephine EBT at 12:12-15.) The Zavolakis defendants also admit that on March 26, 2012, they drove their red Hyundai Sonata together to Josephine's place of work, the Empire Beauty School. (Josephine EBT at 14:18-22.)

In fact, the Zavolakis defendants assert that at around the time of the accident it was their normal practice to drive together every weekday morning from their home in Brooklyn to the Empire Beauty School. (Josephine EBT at 15:04-16:16 [stating that "[n]ormally, 95 percent of the time, I drove in, and then he would drive back"]; John EBT at 11:08-19 [same].) The entrance to Empire Beauty School is located on the south side of 34th Street between 5th and 6th Avenues, where the adjacent traffic moves eastbound. (Josephine EBT at 16:18-17:12.) Thus, when traffic conditions were light, the Zavolakis defendants would customarily make a U-turn from a westbound lane on 34th Street to the eastbound, right lane of the street, crossing a double-yellow line, so that Josephine did not have to walk across the street. (Josephine EBT at 17:24-19:17; John EBT at 18:18-19:13, 24:15-25; but see John EBT at 20:02-15 [stating that he did not recall personally making a U-turn ever].) John would then would then drive back to their home in Brooklyn. (Josephine EBT at 15:22-16:04; John EBT at 11:08-19.)

However, the Zavolakis defendants do not recall whether they made a U-turn on the day of the accident, and neither do they recollect making a U-turn in front of a bus at any point in 2012; nor do they recall which one of them drove to Josephine's workplace that day. (Josephine EBT at 19:18-25, 21:20-24:07; John EBT at 18:09-17, 22:15-23:15.)

ARGUMENTS

I. Sequence No. 002: Liability of the Zavolakis Defendants

Plaintiff argues that "[i]n making an illegal u-turn from a restricted use bus lane across a double yellow line and directly in the path of the oncoming crosstown bus, the Zavolakis defendants violated a plethora of statutes and regulations . . ." and that such "statutory violations establish that the Zavolakis defendants were negligent per se and are jointly and severally liable to plaintiff . . . ." (Seq. 002 Moving Affirm. ¶ 4.)

The Zavolakis defendants contend that there are material issues of fact that militate against finding them liable as a matter of law. First, the Zavolakis defendants argue that the Court should not find their acts to be negligent per se because they "have not been convicted or even charged with any traffic infraction with regard to the happening of the accident." (Seq. 002 Zavolakis Opp. Affirm. ¶ 10.) Second, the Zavolakis defendants argue that they cannot recall whether they made a U-turn on the date of the accident and that this creates a factual inconsistency with the accounts by plaintiff and Transit defendants; and as such a resolution by trial is required. (Id. ¶¶12-13.) Third, the Zavolakis defendants contend that plaintiff has not submitted sufficient evidence establishing that the alleged U-turn was illegal at the place of accident. (Id. ¶¶ 13-14.) Finally, the Zavolakis defendants assert that finding them liable as a matter of law would be inappropriate here because there are questions of comparative fault by the Transit defendants and plaintiff, and that McKay's claim that she was traveling 5 miles per [*4]hour at the time of the accident is questionable given how long it took the bus to stop. (Id. ¶¶ 2, 15-24.)

Plaintiff replies that the Zavolakis defendants fail to raise any triable issues of fact regarding their negligent conduct. First, plaintiff argues that while there are material issues of fact concerning the negligence of Transit defendants, those separate issues of fact do not prevent the Court from finding the Zavolakis defendants liable as a matter of law for "making an illegal u-turn from a restricted use bus lane across a double yellow line directly in the path of an oncoming bus in violation of a plethora of statutes . . . ." (Seq. 002 Pl. Reply. Affirm. ¶ 2.) Second, plaintiff replies that the Zavolakis defendants hint at the possibility of comparative negligence on the part of plaintiff, but the Zavolakis defendants fail to articulate specifically what plaintiff did that was negligent. (Id. ¶ 3.) Third, plaintiff argues that the Zavolakis defendants' failure to remember whether they made a U-turn on March 26, 2012 means that they do not raise a triable issue of fact on that issue. (Id. ¶ 4.)

II. Sequence No. 003: Application of the Emergency Doctrine

Transit defendants assert that when the Zavolakis defendants U-turned their vehicle in front of their bus, defendant bus operator Laura McKay was forced to quickly hit the brakes. Transit defendants argue that McKay's response was reasonable given the emergency situation, and thus any claim that McKay acted negligently must be dismissed.

Plaintiff opposes Transit defendants' motion arguing that there is a triable issue of fact with regard to the comparative fault of defendant McKay because right before the accident plaintiff allegedly observed the bus accelerating to beat a yellow traffic light. (See Seq. 003 Pl. Opp. ¶¶ 6-8, 10.) Plaintiff also questions the accuracy of McKay's estimates regarding the speed of her bus, the stopping time, and the distance between the bus and the Zavolakis vehicle at the time of the accident, claiming that the numbers given by McKay do not add up and that the numbers suggest that McKay was likely driving faster than she admits. (See id. ¶¶ 13-16.)

The Zavolakis defendants make the same arguments that are made in response to Seq. 002.

In reply to plaintiff, Transit defendants cite to plaintiff's deposition testimony stating that she learned of the U-turn by the Zavolakis defendants immediately after it occurred from other passengers on the bus. (Transit Defendants Opp. & Reply Affirm. ¶ 10.) Transit defendants argue that this statement by plaintiff contradicts her position that the bus was accelerating to beat a yellow light. (See id.)

DISCUSSION "Summary judgment is a drastic remedy, to be granted only where the moving party has tendered sufficient evidence to demonstrate the absence of any material issues of fact and then only if, upon the moving party's meeting of this burden, the non-moving party fails to establish the existence of material issues of fact which require a trial of the action."

(Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012] [internal citations, emendation, and [*5]quotation marks omitted].) Furthermore, on a motion for summary judgment, "facts must be viewed in the light most favorable to the non-moving party." (Id. [internal quotation marks omitted].)

I. Sequence No. 002: Liability of the Zavolakis Defendants

Under Vehicle and Traffic Law § 1200 (d), "[w]hen official signs have been posted prohibiting, restricting or limiting the stopping, standing or parking of vehicles on any highway, no person shall stop, stand or park any vehicle in violation of the restrictions stated on such signs."

Under Traffic Rules and Regulations (34 RCNY) § 4-05 (b) (1), "[t]he operator of any vehicle shall not make a U-turn upon any street in a business district, as defined in § 105 of the Vehicle and Traffic Law." Under Vehicle and Traffic Law § 105, a business district is defined as:

"The territory contiguous to and including a highway when within any six hundred feet along such highway there are buildings in use for business or industrial purposes, including but not limited to hotels, banks, or office buildings, railroad stations, and public buildings, which occupy at least three hundred feet of frontage on one side or three hundred feet collectively on both sides of the highway."[FN1]

The plaintiff has submitted considerable evidence including authenticated photographs of 34th Street between 5th and 6th Avenues, showing numerous large storefronts abutting each side of the street. (See, e.g., Seq. 002 Moving Affirm. Ex. M [photographs]; Josephine EBT at 25:22-29:16.) Even if plaintiff had not submitted said evidence the Court would still take judicial notice that this area—home of various iconic shopping institutions—was a business district within the meaning of Vehicle & Traffic Law § 105.

In addition, Traffic Rules and Regulations (34 RCNY) § 4-07 (h) (2) states that, "[n]o vehicle shall make a U-turn on a divided highway, except where permitted by sign or at the direction of a law enforcement officer." The record contains no evidence that a sign or law enforcement officer permitted a U-turn in this area.

Thus, it is clear that any U-turn undertaken by the Zavolakis defendants on March 25, 2012 would have been a violation of Traffic Rules and Regulations (34 RCNY) §§ 4-05 (b) (1) and § 4-07 (h) (2), and therefore such a U-turn would constitute evidence of negligence. (Hoehn v Federico, 24 Misc 2d 51 [Sup Ct Bronx County 1960] [finding defendant driver liable as matter of law for his U-turn in a business district].)

Here, defendants admit that they were in the vicinity of the accident around the time of the accident, and that defendant Josephine Zavolakis owned the subject red Hyundai Sonata that allegedly U-turned in front of the M4 bus driven by McKay. (Josephine EBT at 9:05-10:09, [*6]14:18-22; John EBT at 8:16-21; 9:18-10:09.) In addition, the Zavolakis defendants admit that when traffic conditions were light it was their normal practice to make a U-turn in the subject area. (Josephine EBT at 17:24-19:17; John EBT at 18:18-19:13, 24:15-25.) However, the Zavolakis defendants assert that they do not remember having any "close calls" with an MTA bus on March 26, 2012 or at any point in the spring of 2012. (Josephine EBT at 19:18-25, 21:20-24:07; John EBT at 18:09-17, 22:15-23:15.)

In addition, McKay has testified that immediately before the Zavolakis defendants made a U-turn they were stopped in a bus only lane in violation of Vehicle & Traffic Law § 1200, and that this forced her to pull into the lane on her left to go around the Zavolakis defendants. (McKay EBT at 26:05-26:17.)

Thus, plaintiff's counsel presents compelling evidence that the Zavolakis defendants first momentarily stopped in in the far right, westbound bus-only lane on 34th Street, forcing McKay to begin maneuvering to pull around them, and then made a sweeping U-turn over the double-yellow line into the far right, eastbound lane on the other side of the street.

The Court agrees with plaintiff that this bold maneuver, in violation of the aforesaid regulations, was both negligent as matter of law and a proximate cause of plaintiff's injuries. Contrary to the arguments of their counsel, the fact that the Zavolakis defendants cannot recall making a U-turn on March 26, 2012—and do not recall any "close calls" with MTA buses around that time—does not create a material issue of fact for trial, but rather it fails to state one. (Zuckerman v City of New York, 49 NY2d 557, 562 [1980] ["We have repeatedly held that one opposing a motion for summary judgment must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact . . . ."].)

Because the Zavolakis defendants cannot recall whether they made a U-turn that day, the Court is left only with McKay's testimony that the red Hyundai Sonata owned by the Zavolakis defendants made a U-turn in front of her without warning. That the Zavolakis defendants admit that they were in the area of the accident at that time, and that they habitually made U-turns when the traffic was light—a condition also present during the time of accident—further confirms that there is no issue of fact as to whether the Zavolakis defendants made the illegal U-turn which caused McKay to hit the brakes, setting in motion the events which ultimately caused plaintiff's injuries.

While the Zavolakis defendants do assert that plaintiff is comparatively at fault, the Court agrees with plaintiff that the Zavolakis defendants fail to state a specific theory as to plaintiff's comparative fault. To the extent the Zavolakis defendants might be arguing that plaintiff should have remained in her seat until the bus reached her stop, the Court would find this theory to be unavailing since passengers, just as drivers, have the right to expect that other drivers will obey the traffic laws. (See Ismail v Burnbury, 118 AD3d 756, 757 [2d Dept 2014] [holding that since plaintiff driver "had the right-of-way, she was entitled to anticipate that the defendant driver would obey traffic laws which required her to yield"]; Alston v Am. Tr., Inc., 82 AD3d 546, 546-47 [1st Dept 2011] [holding that ambulette driver was entitled to anticipate that cab driver, who was pulling out from curb after picking up passengers, would obey traffic laws requiring him to yield]; see also Rountree v Manhattan and Bronx Surface Tr. Operating Auth., 261 AD2d 324, 328 [1st Dept 1999] ["As for defendant's other argument that plaintiff was negligent in not [*7]gripping the handrail more tightly, we reject this as illogical. Clearly, there is a limit to how tightly one can hold the railing if one is trying to walk towards a seat, rather than remaining immobile. A plaintiff is only expected to exercise ordinary care for his own safety, particularly when he has no reason to believe he is in any danger."].)

Thus, the Court finds that the Zavolakis defendants are jointly and severally liable to plaintiff as a matter of law—John is liable as the driver and Josephine as the owner under Vehicle and Traffic Law § 388 (1).

II. Sequence No. 003: Application of the Emergency Doctrine

Under the emergency doctrine, " when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context' provided the actor has not created the emergency."

(Caristo v Sanzone, 96 NY2d 172, 174 [2001] [internal citation omitted], quoting Rivera v New York City Tr. Auth., 77 NY2d 322, 327 [1991].) "Although the existence of an emergency and the reasonableness of a party's response to it will ordinarily present questions of fact, they may in appropriate circumstances be determined as a matter of law." (Flores v Metropolitan Transp. Auth., 122 AD3d 672, 672 [2d Dept 2014] [internal citations and quotation marks omitted].)

Here, although defendant McKay was clearly confronted with an illegal U-turn by the Zavolakis defendants, plaintiff has testified that defendant McKay was accelerating to beat a yellow light and that the bus appeared to reach a speed of twenty (20) miles per hour. (See Fay EBT at 29:15-20, 54:22-55:10, 67:12-68:5.)

However, accepting plaintiff's testimony as true, plaintiff still fails to adduce a material issue of fact regarding Transit defendants' alleged negligence in the accident. (See PJI 2:14 [stating that the emergency doctrine "applies where a person is faced with a sudden condition, which could not have been reasonably anticipated, provided that the person did not cause or contribute to the emergency by (his, her) own negligence"]; Gouchie v Gill, 198 AD2d 862, 863 [4th Dept 1993] [finding that plaintiff "failed to raise a triable issue of fact concerning possible negligence of the defendant that might have contributed to the accident"].) Indeed, at the time of the accident, the official speed limit in the City of New York was 30 miles per hour. (See Traffic Rules and Regulations [34 RCNY] § 4-06, Note [noting that instant section "amended Section 19-177 of the New York City Administrative Code to reduce the official citywide speed limit from thirty miles per hour to twenty-five miles per hour" and took effect on November 7, 2014].) Neither plaintiff nor the Zavolakis defendants have introduced any evidence that there were weather or traffic conditions necessitating application of a slower speed. (Compare Doxtader v Janczuk, 294 AD2d 859 [4th Dept 2002] [affirming summary judgment in favor of defendant [*8]who established that "he was traveling at a lawful speed and was paying attention to the traffic surrounding him" when he was suddenly faced with plaintiff's car running a stop sign] with Cahoon v Frechette, 86 AD3d 774, 778 [3d Dept 2011] [affirming denial of defendant's motion for summary judgment where there were questions of fact regarding whether "was traveling at a speed that was unsafe due to the weather and road conditions, whether his speed contributed to the creation of the emergency situation"].) Rather, the record indicates that the weather conditions were clear and the traffic was light. (Fay EBT at 14:9-17, 24:7-18; McKay EBT at 15:15-18, 20:10-16.) Thus, even assuming for the purposes of argument, that plaintiff's allegation that the bus was traveling at 20 miles per hour is true, plaintiff still fails to raise a triable issue of fact regarding whether McKay was operating the bus in such a negligent manner as to be a substantial factor in bringing about the accident.

Moreover, given how close the red Hyundai Sonata came to the bus and how quickly the encounter unfolded, the Court finds that McKay reacted reasonably for a person faced with an emergency situation by applying the brakes. (See Rivera, 77 NY2d at 327 ["A person in such an emergency situation cannot reasonably be held to the same accuracy of judgment or conduct as one who has had full opportunity to reflect, even though it later appears that the actor made the wrong decision.'"]; Flores, 122 AD3d at 673 [holding that defendants were entitled to summary judgment because "the actions of the defendant bus driver in braking abruptly to avoid a collision with another vehicle which suddenly cut in front of the bus were reasonably prudent in an emergency situation not of his own making" and plaintiffs speculative and conclusory allegations failed to a triable issue of fact].)

Therefore, the complaint is dismissed in its entirety as against the Transit defendants only, and all cross claims by and against the Transit defendants are dismissed.

CONCLUSION

Accordingly, it is hereby

ORDERED that plaintiff's motion for summary judgment (Motion Sequence No. 002) is GRANTED, and plaintiff is granted summary judgment in her favor as to liability only as against defendants John Zavolakis and Josephine Zavolakis; and it is further

ORDERED that the motion of defendants New York City Transit Authority, Metropolitan Transportation Authority, Manhattan and Bronx Surface Transit Operating Authority, and McKay for summary judgment (Motion Sequence No. 003) is GRANTED in favor of these defendants, and the complaint is dismissed in its entirety as against said defendants only, and all cross-claims by and against said defendants are dismissed with costs and disbursements to said defendants as taxed by the Clerk upon the submission of an appropriate bill of costs, and the Clerk is directed to enter judgment accordingly in favor of these defendants; and it is further

ORDERED that the action is severed and continued against the remaining defendants; and it is further

ORDERED that this personal injury action is respectfully referred to the General Clerk's Office for reassignment to the Motor Vehicle Part.

[*9]Dated: March8, 2016

New York, New York

ENTER:

/s/

J.S.C. Footnotes

Footnote 1:Under Vehicle and Traffic Law § 118 a highway is defined as "[t]he entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel."