Estate of Bowen v Tri State Haulers, Inc.
Annotate this Case
Download PDF
Estate of Bowen v Tri State Haulers, Inc. 2017 NY Slip Op 32017(U) September 26, 2017 Supreme Court, New York County Docket Number: 153988/12 Judge: David B. Cohen 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] INDEX NO. 153988/2012 NYSCEF DOC. NO. 107 RECEIVED NYSCEF: 09/26/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 35 ------:----------------------------------------------------------~--)( ESTATE OF ROBERT EMMETT BOWEN, III, by and through the Estate Administrator, AMY LEMMON BOWEN, and AMY LEMMON BOWDEN, on her 0':"11 Behalf and on behalf of her minor children, : I I Plaintiffs, Index No. 153988/12 -againstTRI STATE HAULERS, INC., FREDERICK STAIR, JR. and VERIZON NEW YORK, INC., Defendants. ,, ------~----------------------------------------------------------~-)( DAVID COHEN, J : Motion sequence numbers 002 and 003 are consolidated for disposition. In motion 1 sequence number 002, defendant Verizon New York, Inc. (Verizon) moves, pursuant to CPLR i 3212.(a), for summary judgment dismissing the complaint, as against it, and dismissing all cross claims asserted by its codefendants. In motion seque~ce number 003, defendants Tri State i·: l Haulers, Inc. (Tri State) and Frederick Stair, Jr. (Stair) similarly move for summary judgment .j ,1 •I dismissing the complaint, as against them. I " ! This case arises out of an accident on August 26, 2010, in which the late Robert Emmett Bow~n, III was fatally injured when, while cycling southward, he attempted to cycle around a Verizon truck parked in the west bus lane of Second Avenue, just north of 59th Street, and colliqed with a southbound vehicle traveling in the west traffic lane. An investiation by the New York City Police Department concluded that Mr. Bowen was hit by the right rear tires of a 60foot-long southbound flatbed trailer truck, owned by Tri State, and driven by Stair. See New -1- 2 of 7 [* 2] INDEX NO. 153988/2012 NYSCEF DOC. NO. 107 RECEIVED NYSCEF: 09/26/2017 York;Police Department closing report, Podolsky af:famation, exhibit B at 1. The complaint alleges, as against all defendants, two causes of action sounding in negligence: the first, for pain I and suffering; the second, for wrongful death. Vehicle and Traffic Law (VTL) § 1103 (b) provides that, where a vehicle is "actually engaged in work on a highway," a plaintiff claiming tb have been injured thereby may recover only by showing "a reckless disregard for the safety of others"; that is, a plaintiff must show a "conscious disregard of 'a known or obvious risk thafwas so great as to make it highly probable ,, that harm would follow.'" Bliss v State ofNew York, 95 NY2d 911, 913 (2000), quoting I .. Saar.inen v Kerr, 84 NY2d 494, 501 (1994); see also Yousefv Verizon, Inc., 33 AD3d 315, 315 (1st i;:>ept 2006). The Verizon truck was parked pursuant to a utility manhole embargo permit, ·1 which was issued by the City of New York to allow Verizon employees to perform emergency work drying a wet splice that was accessible from a manhole located directly in back of the truck. I See Bass affirmation, exhibit F. The truck contained a generator which provided heat, through a : j chut~, to dry the splice. Accordingly, VTL § 1103 (b) is applicable to plaintiffs' claims against Verizon. ·1 I Verizon has presented evidence that its truck ~as parked facing north, that is, facing the oncdming southbound traffic. At the time of the accident, the truck's headlights, flashing front I I light~, five lights on the front of the truck, and a flashing strobe light on top of the truck were all on. Bass affirmation, exhibit Eat 26, 35, 99-100; Jeffrey affidavit, if 7. In addition, reflective I 1. orange traffic cones were in place next to the manhole, next to the truck on its east side, and I behind the truck on the south side; and, a number of reflective traffic cones, with flags attached, I were in place in the bus lane north of the truck. Jeffrey affidavit, if 5. Accordingly, inasmuch as -2- 3 of 7 [* 3] INDEX NO. 153988/2012 NYSCEF DOC. NO. 107 anyo~e RECEIVED NYSCEF: 09/26/2017 cycling or driving south, either in the bus lane, or in the adjacent right hand lane, would have had ample warning of the presence of the truck, Verizon has made a prima facie showing I f ! that it did not act negligently, let alone recklessly. In opposition, plaintiffs speculate that the Verizon truck could have been parked closer to ·I the curb, thus allowing passing cyclists to remain in the bus lane, and they complain that Verizon ' f failed to create a safe passageway for cyclists to pass its truck. Neither this speculation, nor this imputation of a duty beyond the duty to warn, suffices to avert dismissal of the complaint. Because Verizon breached no duty to plaintiffs and owed no separate duty to Tri State or to Stair, their claim for contribution fails. Chunn v New York City Hous. Auth., 83 AD3d 416, :1 !- I , 417 (1st Dept 2011). The claim for common-law indemnification also fails, because, if Tri } ;. State and Stair are found to be directly liable to plaintiffs, they, as wrongdoers, can have no ' I recovery from Verizon. Aiello v Burns Intl. Sec. Servs Corp., 110 AD3d 234, 247 (1st Dept 2013). ! I : Tri State and Stair argue that, notwithstanding the police conclusion that the truck which struck Mr. Bowen was driven by Stair, there is no evidence that such was the case, and the conclusion of the police is based solely on Mr. Stair's; identification of the truck on a videotape i of tr~ffic captured on 57th Street and Fifth Avenue shortly after the accident. Stair testified at his i dep~sition that, in August 2010, he made numerous trips to New Jersey; that one of his two usual routes from Queens to the Lincoln Tunnel had him turning south from the 591h Street Bridge onto one of the right-hand lanes of Second A venue, and then turning west on 57th Street; and, that he I was usually there at about 8:00 p.m., the time of Mr. Bowen's accident. He recalled that on one i of hi.s trips, he saw a parked Verizon truck performing work on the west side of Second Avenue -3- 4 of 7 [* 4] INDEX NO. 153988/2012 NYSCEF DOC. NO. 107 RECEIVED NYSCEF: 09/26/2017 between 59th Street and 60 1h Street. Accordingly, Mr. Stair's testimony, in conjunction with the videci capture of his truck on 57th Street, shortly after the accident, shows that his truck was at the scene of the accident at approximately the time of the 1accident. The police eventually identified ! both ';stair and the Tri State truck on the basis of a statement by one M.D. Islam, who was i inter~iewed at the scene of the accident. Mr. Islam stated that he had been standing at the southwest comer of Second Avenue and 59th Street, and had observed that, when a cyclist ,, ' attempted to cycle around the parked Verizon truck, and was alongside of it, he was hit by the i side bf a southbound black flat bed truck traveling in the west traffic lane to 57th Street, where it mad~ a right turn. The cab of Mr. Stair's truck is white, but the flat bed behind it is black . .! Tri State and Stair present the expert opinion qf Robert Genna, who states that he ! reviewed the police files pertaining to the accident. Mr. Genna, however, completely ignores the ! i police records of Mr. Islam's statement. Mr. Genna opines that, in view of the traffic light patterns in the area, a truck exiting the 59th Street Bridge and turning left onto the right lane of Seco'nd Avenue could not be traveling southbound at ,~O miles per hour, because, assuming that the ttuck had a green light exiting the bridge, it would have had to stop at a red light on Second 'i I Ave~ue and 59th Street. Mr. Genna states that, in order to move down Second Avenue at the ' speed of traffic, a truck would have to drive from the bridge exit to the right lane of Second i I Avenue in three seconds, while, according to his calculations, a truck would take approximately f I I 14 seconds, and reach a speed of 15-16 miles per hour, at which time the light at 59th Street f I• wou~d be red. That opinion is expressly based upon an average typical tractor trailer acceleration ·! ' '" ; rate.: It is not probative of either the acceleration rate of the Tri State truck, or the speed at which Mr. Stair drove past the Verizon truck. Moreover, Mr. Stair had no specific recollection of his -4- 5 of 7 [* 5] INDEX NO. 153988/2012 NYSCEF DOC. NO. 107 RECEIVED NYSCEF: 09/26/2017 trip on the evening of the accident, other than that he noticed the Verizon truck. It is possible, i assurl-iing that he came over the 59th St. Bridge, that he went uptown for some reason, and then came down on Second A venue. Mary Gustella stated at her deposition that, at the time of the I 1; ; 1· accident, she was standing on the comer of Second Avenue and 59th Street, waiting for the light to change so that she could cross the street, and that, at that time, the light was green for southbound traffic, and heavy traffic was rapidly going past her on Second A venue. I :' Tri State and Stair also argue that the finding, by a New York State Department of Motor i Vehicles administrative law judge, that Stair did not violate VTL § 510 by failing to file a report of the accident, collaterally estops plaintiffs from arg~ing that Stair's truck was involved in Mr. i· I I Bow~n's accident. That argument fails, because no police witness appeared at the hearing and the administrative law judge's opinion expressly states that "[t]here was no evidence at this , I: 1: hearing showing the factual basis on which police listed [Stair's] vehicle as being involved in the I accident." Coleman affirmation, exhibit Nat 3 (emphasis supplied) In sum, there is circumstantial evidence that the Tri State truck was involved in the acci<l,ent. Circumstantial evidence may show negligence and causation, and thus suffice to avert ! dism}ssal. Weicht v City o/New York, 148 AD3d 551', 551 (1st Dept 2017); Brito v Manhattan & Bronx Surface Tr. Operating Auth., 188 AD2d 253, 254 (1st Dept 1992). While plaintiffs may be unable to prove negligence, or even causation, at trial, at this stage of the action, dismissal wou.1d be premature. Accordingly it is hereby ORDERED that, in motion sequence No. 002, the motion of defendant Verizon New Y or~, Inc. for summary judgment is granted and the complaint is dismissed, as to said defendant, -5- 6 of 7 [* 6] INDEX NO. 153988/2012 NYSCEF DOC. NO. 107 RECEIVED NYSCEF: 09/26/2017 ' with bosts and disbursements as taxed by the Clerk or'the Court upon the submision of an I , appropriate bill of costs and the Clerk is directed to eriter judgment accordingly; and it is further ORDERED that the action is severed and cont~nued against the remaining defendants; I and fr is further : ORDERED that, in motion sequence No. 003, the motion of defendants Tri State Haulers i Inc. bid Frederick Stair, Jr. for summary judgment is denied. I Dated: ~ - "),(:, ... ;)./) (f· :yQ~ ENTER: J.S.C. I I I :1 -6- 7 of 7
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.
