Valcarcel v New York City Tr. Auth.

Annotate this Case
[*1] Valcarcel v New York City Tr. Auth. 2016 NY Slip Op 50941(U) Decided on June 16, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 16, 2016
Supreme Court, New York County

Prince Valcarcel, Plaintiff,

against

New York City Transit Authority, METROPOLITAN TRANSPORTATION AUTHORITY and PATRICK MILANO, Defendants.



152978/12



Appearances:

For Plaintiff—Movant:

Jack Grossman, Esq.

Mallilo & Grossman

163-09 Northern Boulevard

Flushing, New York 11358

(718) 461-6633

For Transit Defendants—Non-Movants:

Christine Loughlin McCrink, Esq.

Delaney & McCrink

20 Terrace Place

Tuckahoe, New York 10707-4141

(917) 602-3837
Michael D. Stallman, J.

In this personal injury action, plaintiff alleges that he was injured when a New York City Transit Authority bus rear-ended his vehicle while he was stopped at a red light. Plaintiff now moves for an order granting summary judgment in his favor on the issue of liability and setting this action down for an immediate trial on the issue of damages. Defendants oppose the motion.

BACKGROUND

Plaintiff Prince Valcarcel alleges that on October 24, 2011 at 9:40 a.m., he was sitting in the driver seat of his car, stopped at a red light on Broadway near the intersection with Wall Street, when his car was rear-ended by a route X17 bus operated by Patrick Milano and owned by the New York City Transit Authority. (Grossman Affirm. ¶ 3; Ex. A [Police Accident Report]; Ex. B [Complaint] ¶¶ 17-18; Ex. C [Valcarcel EBT] at 9:17-10:10, 12:18-13:12, 22:05-08; McCrink Opp. Affirm., Ex. 1 [Bill of Particulars] ¶¶ 2-3, 5-6; Ex. 2 [Milano EBT] at 12:06-[*2]17.) Defendants did not deny that the New York City Transit Authority (NYCTA) owned the X17 bus at issue. (Compare Complaint ¶ 7 with Grossman Affirm., Ex. B [Verified Answer] ¶ 1.)

Plaintiff further states that prior to the accident, he was traveling southbound on Broadway, and that he was in the middle lane of a three-lane road with a parking lane to his left and a bus lane to his right. (Valcarcel EBT at 9:25-10:10, 14:18-15:20.) Plaintiff states that, as he was approaching Wall Street, he was initially traveling about 30 miles per hour, but that he slowed down around the middle of the block when he noticed the light turn to yellow, and that he came to a complete stop within "a foot or two" from the intersection when the light was red. (Id. at 16:19-19:20.) Plaintiff states that he was stopped at the red light for "[a]bout three to four seconds" before his car was rear-ended by the defendants' bus. (Id. at 22:05-08.)

Defendant Patrick Milano states that on the morning of the accident he had just taken the bus out of service, and he was heading southbound on Broadway. (Milano EBT at 17:20-19:14.) Milano states that, as he was approaching the subject intersection, he observed that the light was green from about "a block, block and a half before" the subject intersection. (Id. at 25:10-20.) Milano states that he was initially in the right lane as he approached the intersection but that he moved to the middle lane because there was a stopped bus in the right lane. (Id. at 26:13-23.)

Milano states that he maintained his speed as he approached the green light with plaintiff driving in front of him, but that, as they were about to enter the intersection, plaintiff abruptly accelerated and then "slammed on the brakes", and then accelerated again and then "slammed on his brakes." (Id. at 26:20-31:17.) Milano states that the first time that plaintiff braked, he did not make contact with plaintiff's car and there was "probably four feet" separating the front of the bus from the rear of plaintiff's car, and that plaintiff's car was roughly in the center of the intersection. (Id. at 28:11-29:09.) However, the second time that plaintiff "accelerated and then slammed on his brakes", Milano "tapped him." (Id. at 31:04-13.) Milano states that he accelerated to "[o]ne to three miles an hour" and that there was a "second or two" between the moment he accelerated and the accident. (Id. at 34:12-22.) Milano asserts that the light remained green from the moment he approached the intersection to the moment of the accident. (Id. at 27:05-10, 38:18-39:05.)



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 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].)

Plaintiff moves for an order granting summary judgment in his favor on the issue of liability and setting this action down for an immediate trial on the issue of damages, on the ground that he was rear-ended by defendants New York City Transit Authority, Metropolitan Transportation Authority, and Patrick Milano (Transit Defendants). (Grossman Affirm. ¶¶ 6-9.)

Transit Defendants argue that plaintiff's motion for summary judgment should be denied because there are material questions of fact concerning whether plaintiff was rear-ended while stopped at a red light, as plaintiff claims, or whether, as Milano claims, plaintiff stopped [*3]suddenly in the middle of the intersection while proceeding with a green light. (McCrink Opp. Affirm. ¶¶ 6-8.) Transit Defendants further argue that, based on Milano's version of the accident, summary judgment should be denied, citing Tutrani v County of Suffolk (10 NY3d 906 [2008]) and Passos v MTA Bus Co. (129 AD3d 481, 482 [1st Dept 2015]). (McCrink Opp. Affirm. ¶¶ 9-10.) Lastly, Transit Defendants appear to argue that Milano was faced with "an emergency stop situation created by the plaintiff." (Id. ¶ 6.)

Summary judgment against NYCTA and Milano is granted. Drivers have a duty under Vehicle and Traffic Law § 1129 (a) to maintain "safe distances between their cars and cars in front of them and this rule imposes on them a duty to be aware of traffic conditions, including vehicle stoppages." (Johnson v Phillips, 261 AD2d 269, 271 [1st Dept 1999] [internal citation omitted]; see also LaMasa v Bachman, 56 AD3d 340 [1st Dept 2008] ["A driver is expected to drive at a sufficiently safe speed and to maintain enough distance between himself and cars ahead of him so as to avoid collisions with stopped vehicles, taking into account weather and road conditions."].) Consequently, "[i]t is well settled that a rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the driver of the rear vehicle, and imposes a duty on the part of the operator of the rear vehicle to come forward with an adequate nonnegligent explanation for the accident." (Morgan v Browner, 138 AD3d 560 [1st Dept 2016] [quotation marks omitted]; see also Corrigan v Porter Cab Corp., 101 AD3d 471 [1st Dept 2012] [same]; Johnson, 261 AD2d at 271 [same].) Here, Milano admits that he rear-ended plaintiff's vehicle, so plaintiff has established a prima facie case for summary judgment in his favor on liability against the NYCTA and Milano, and the burden is on Transit Defendants to come forward with an "adequate nonnegligent explanation for the accident." (Morgan, 138 AD3d 560.)

Although Milano states that he rear-ended plaintiff because plaintiff stopped short twice while proceeding through the intersection with a green light, "[a] claim that the lead vehicle made a sudden stop, standing alone, is insufficient to rebut the presumption of negligence on the part of the rear driver." (Morgan, 138 AD3d 560 [quotation marks omitted]; see also Johnson, 261 AD2d at 271 [same].) Neither does the assertion that the sudden stop occurred in the intersection while plaintiff was proceeding with a green light present a material question of fact for trial. (See Chowdhury v Matos, 118 AD3d 488 [1st Dept 2014] ["Furthermore, even crediting the testimony of defendant Collazo that Mohammed abruptly stopped in the middle of the intersection and not for a red light, defendants have failed to proffer a nonnegligent explanation for the rear-end collision." [internal citation omitted and emphasis supplied]]; Malone v Morillo, 6 AD3d 324, 325 [1st Dept 2004] ["Regardless of whether defendants were already stopped at the red light, or stopped suddenly in the middle of the intersection while the light was yellow, we find no nonnegligent explanation by plaintiff for striking defendants' vehicle in the rear under the present circumstances"].) Indeed, only a year ago this Court granted summary judgment in favor of a rear-ended plaintiff where the defendant NYCTA bus driver stated that plaintiff braked three times in the intersection while proceeding with a green light. (Pan v Haynes, 47 Misc 3d 306, 312-13 [Sup Ct, NY County 2015].)

Similarly unavailing is Transit Defendants' reliance on Tutrani v County of Suffolk (10 NY3d 906 [2008]) and Passos v MTA Bus Co. (129 AD3d 481, 482 [1st Dept 2015]), both of which involved three-car accidents. In Tutrani, a Suffolk County police car suddenly decelerated from approximately 40 miles per hour to 1 to 2 miles per hour while changing lanes "in the middle lane of the three-lane highway." (10 NY3d at 907.) This caused the plaintiff in Tutrani [*4]to suddenly "slam[] on her brakes", which successfully avoided a collision with the police car, only then to be rear-ended by a co-defendant's vehicle. (Id.) Thus, Tutrani involved three vehicles, where the front car first stopped suddenly, forcing the middle car to stop suddenly, which was then rear-ended by a third car. In contrast, crediting Milano's testimony as true, the present case involves a two-car collision in the intersection of a city street during rush hour, in which the rear car "tapped" the front car at a speed of "one to three miles an hour" after the front car stopped abruptly for the second time. (Milano EBT at 31:04-31:14, 34:12-22.) Rather than resembling the dramatic series of abrupt stops in Tutrani, the facts in this case, as alleged by Milano, resemble those in Pan v Haynes, in which this Court awarded summary judgment to the rear-ended plaintiff. (47 Misc 3d at 308-10.)

Moreover, it bears noting that although Tutrani held that the leading, Suffolk County police car—which decelerated from approximately 40 miles per hour to 1 to 2 miles per hour while changing lanes in the middle lane of a highway—could be found negligent, the Court of Appeals did not hold that the sudden stop by the plaintiff-middle car in response to the police car rebutted the presumption of negligence by the driver who rear-ended the plaintiff.



Passos is also distinguishable. Unlike the rear-end collision here, Passos involved a three-car accident, in which the driver of the lead vehicle described feeling two separate and distinct impacts from behind. (129 AD3d at 482.) The Passos majority therefore reasoned that this testimony raised an issue of fact as to whether the middle car rear-ended the front car before being itself rear-ended by a following bus. (Id.) Thus, the majority concluded that a jury question was presented: "namely, whether Passos's collision with the [front] vehicle created a foreseeable danger that the MTA defendants would also have to brake aggressively, increasing the risk of a second rear end collision." (Id. at 483.)

Lastly, to the extent that Transit Defendants are attempting to invoke the emergency doctrine by arguing that Milano was faced with "an emergency stop situation created by the plaintiff" (McCrink Opp. Affirm. ¶ 6), this argument is unavailing. "[T]he emergency doctrine typically is inapplicable to routine rear-end traffic accidents." (Johnson v Phillips, 261 AD2d at 271; see also Matias v Grose, 123 AD3d 485, 486 [1st Dept 2014] [holding that emergency doctrine did not apply to accident in which defendant's tractor trailer rear-ended another stopped tractor trailer from the rear, causing defendant's tractor trailer to jack-knife and strike plaintiff's vehicle]; Jacobellis v New York State Thruway Auth., 51 AD3d 976, 977 [2d Dept 2008] [holding that emergency doctrine did not apply in case where rear-driver veered into claimant's decedent's vehicle to avoid colliding with rear-car that stopped suddenly to avoid an animal]; DiPaola v Scherpich, 239 AD2d 459, 460 [2d Dept 1997] [holding that inference of negligence was not rebutted where rear-ended vehicle stopped suddenly "to yield to an ambulance displaying emergency lights"].) To apply the emergency doctrine in a routine rear-ending case—like the instant case—would create a common law exception that would swallow the statutorily derived rule that "[a] claim that the lead vehicle made a sudden stop, standing alone, is insufficient to rebut the presumption of negligence on the part of the rear driver." (Morgan, 138 AD3d 560 [quotation marks omitted]; Johnson v Phillips, 261 AD2d at 271.)

After plaintiff's motion was submitted, on April 7, 2016, the Appellate Division, First Department issued its decision in Maisonet v Roman (139 AD3d 121 [1st Dept 2016], appeal dismissed, 2016 NY Slip Op 75298 [Ct App June 2, 2016].) In Maisonet, defendant Roman claimed that he had been driving 20 miles per hour at a safe distance behind plaintiff Maisonet with the right of way, when another car suddenly turned left in front of him at an intersection. [*5]To avoid colliding with the turning car, Roman swerved to the right, and then swerved sharply to the left to avoid a subway column, and then rear-ended Maisonet's moving vehicle. (Id.)

By a three-two decision, the Appellate Division, First Department reversed the lower court's grant of summary judgment in favor of plaintiff, ruling that Roman had raised triable issues of fact as to the existence of an emergency and the reasonableness of his response to that emergency. (Id.) In response to the dissent's criticism that the accident could only have caused by Roman's failure to drive at a safe speed and maintain a safe distance between himself and Maisonet, the majority relied on Roman's affidavit "in which he maintains not only that he was driving 20 miles per hour when an unexpected car suddenly turned left in front of him, but that he had been traveling at a safe distance behind the vehicle directly in front of him." (Id.)

Unlike Maisonet, the instant case involves a routine, rear-end collision between vehicles traveling in the same lane. No third-party vehicle suddenly crossed into Milano's lane of travel, and Milano did not rear-end plaintiff's vehicle after swerving to avoid other collisions. The rear-end collision here was a foreseeable consequence of Milano's failure to maintain an appropriate distance from plaintiff's vehicle in Monday morning traffic in Manhattan's financial district.

Therefore, plaintiff is granted summary judgment in his favor as to liability against the NYCTA and Milano. Summary judgment is denied as to defendant Metropolitan Transportation Authority. "[T]he functions of the MTA with respect to public transportation are limited to financing and planning, and do not include the operation, maintenance, and control of any facility." (Cusick v Lutheran Med. Ctr., 105 AD2d 681, 681 [2d Dept 1984]; see also Towbin v City of New York, 309 AD2d 505, 505 [1st Dept 2003] [MTA neither owns nor operates any buses].)



CONCLUSION

Accordingly, it is hereby

ORDERED that the motion is granted, and plaintiff is granted summary judgment as to liability in his favor against defendants New York City Transit Authority and Patrick Milano, and the motion is otherwise denied; and it is further

ORDERED that an immediate trial of the aforesaid issues of fact shall be had before the court; and it is further

ORDERED that plaintiff shall, within 20 days from entry of this order, serve a copy of this order with notice of entry upon counsel for all parties hereto and upon the General Clerk's Office (Room 119).



Dated: June 16, 2016

New York, New York

ENTER:

/s/

J.S.C.