Mingo v Bravflo Corp.

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Mingo v Bravflo Corp. 2018 NY Slip Op 30440(U) March 8, 2018 Supreme Court, New York County Docket Number: 151247/2016 Judge: Kathryn E. Freed Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 03/16/2018 02:40 PM 1] NYSCEF DOC. NO. 69 INDEX NO. 151247/2016 RECEIVED NYSCEF: 03/16/2018 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART __2 _ _ HON. KATHRYNE. FREED Justice --------------------------------------------------------------------------------X ZINA MINGO, INDEX NO. 151247/2016 Plaintiff, -v- .· MOTION SEQ. NO. BRAVFLO CORP., MAMADOU DAO, GVC II INC., FELIBERTO QUINONES, METROPOLITAN TRANSIT AUTHORITY, NEW YORK CITY TRANSIT AUTHORITY-ACCESS-A-RIDE 001 & 003 DECISION AND ORDER Defendant. ---------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion.001) 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 3_1, 3_2, 33, 34, 54 were read on this motion to/for JUDGMENT-SUMMARY The following e-filed documents, listed by NYSCEF document number (Motion 003) 57, 58, 59, 60, 61, 62,63 were read on this motion to/for CONSOLIDATE/JOIN FOR TRIAL In this action to recover for personal injuries from a motor vehicle accident, defendants GVC II, Inc., Feliberto Quinones, Metropolitan Transit Authority and New York City Transit Authority-Access-A-Ride (hereinafter collectively referred to as "the Access-A-Ride defendants") move for summary judgment dismissing the complaint and cross claims against them. (Motion Seq. No. 001.) Plaintiff cross-moves for summary judgment in her favor on the issue of liability against defendants Bravflo Corp. and Mamadou Dao (hereinafter collectively referred to as "the taxi defendants"). The taxi defendants oppose both the motion and cross motion. The taxi defendants also move to consolidate this action with one pending in Supreme Court, Bronx County, entitled Quinones v Bravfl.o Corp. and bearing index No. 20677/2017£. (Motion Seq. No. 003.) That motion is unopposed. 151247/2016 MINGO, ZINA vs. BRAVFLO CORP. Motion No. 001 003 Page 1of6 1 of 6 [*FILED: NEW YORK COUNTY CLERK 03/16/2018 02:40 PM 2] NYSCEF DOC. NO. 69 INDEX NO. 151247/2016 RECEIVED NYSCEF: 03/16/2018 Both the above-captioned action and the one pending in Bronx County concern the same motor vehicle accident that occurred on September 16, 2015 on Adam Clayton Powell Boulevard between 135th and 136th Streets in Manhattan. Plaintiff testified at her 50-h hearing that she was the passenger in a green taxi driven by Dao. (Doc. No. 21.) She stated that the taxi struck an Access-A-Ride vehicle in front of it, which was stationary at the time. Quinones submits an affidavit in which he states that he was the driver of an Access-A-Ride vehicle. He avers that he was stopped at a traffic light and, when it turned green, he "began to move [his] vehicle," at which point the taxi behind him "contacted the rear of the vehicle [he] was operating." (Doc. No. 22.) First, both the above-captioned action and the action pending i.n Bronx County arise from the same set of facts, so consolidation would serve the interests of justice and judicial economy. (See DLJ Mtge. Capital, Inc. v Kontogiannis, 110 AD3d 522, 523 [I st Dept 2013 ]; Murphy v 317-319 Second Realty LLC, 95 AD3d 443 [I st Dept 2012].) With respect to the substantive motions, the movant on a motion for summary judgment must satisfy its initial burden to "make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact," after which the burden shifts to the opposing party "to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action." (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; see Schmidt v One N. Y. Plaza Co. LLC, 153 AD3d 427, 428 [1st Dept 2017]; Bartolacci-Meir v Sassoon, 149 AD3d 567, 570 [I st Dept 2017].). Plaintiff and the Access-A-Ride defendants' submissions implicate the well settled principle that "a rear-end collision with a stopped vehicle creates a presumption that the operator of the moving vehicle was negligent" and thus, upon a shifting of the burden to 151247/2016 MINGO, ZINA vs. BRAVFLO CORP. Motion No. 001 003 Page 2 of 6 2 of 6 [*FILED: NEW YORK COUNTY CLERK 03/16/2018 02:40 PM 3] NYSCEF DOC. NO. 69 INDEX NO. 151247/2016 RECEIVED NYSCEF: 03/16/2018 the taxi defendants, summary judgment must be granted "unless the driver of the moving vehicle provides a non-negligent explanation for the collision." (Agramonte v City of New York, 288 AD2d 75, 76 [!st Dept 2001]; see Matos v Sanchez, 147 AD3d 585, 586 [1st Dept 2017]; Corrigan v Porter Cab Corp., 101AD3d471, 471 [1st Dept 2012].) The taxi defendants' argument that summary judgment should not be granted because they have been unable to locate Dao, the driver of the taxi, is without merit. Initially, the taxi defendants have not alerted this Court of any law to support their position that the inability to locate their own client is a proper reason to deny summary judgment. Further, the proof of their efforts to locate Dao consists of a single email to the purported investigator, which reads: "Jim: Please contact our driver to confirm or deny a rear-ending. Thanks." The taxi defendants have failed to raise a question of fact as to liability. (Cf Silverio v Arvelo, 103 AD3d 401 [1st Dept 2013]; Hann v Black, 96 AD3d 1503, 1505 [4th Dept 2012]; Mason v MTA N.Y. City Tr., 38 AD3d 258 [1st Dept 2007]; Reidel v Ryder TRS, Inc., 13 AD3d 170, 171 [1st Dept 2004].) Finally, since Quinones's complaint against the taxi defendants is now consolidated with the above-captioned action, this Court is able to make a determination as to liability on his claims. Upon searching the record, Quinones is awarded summary judgment in his favor on the issue of liability against the taxi defendants. (See CPLR 3212 fb]; Morris v P_avarini Const., 22 NY3d 668, 675 [2014];.Blanco v NBC Trust No. 1996A, 122 AD3d 409, 409-410 [1st Dept 2014]; Mini Mint Inc. v Citigroup, Inc., 83 AD3d 596, 597 [1st Dept 2011].) Accordingly, it is hereby: 151247/2016 MINGO, ZINA vs. BRAVFLO CORP. Motion No. 001 003 Page 3 of 6 3 of 6 [*FILED: NEW YORK COUNTY CLERK 03/16/2018 02:40 PM 4] NYSCEF DOC. NO. 69 INDEX NO. 151247/2016 RECEIVED NYSCEF: 03/16/2018 ORDERED that the Access-A-Ride defendants' motion for summary judgment dismissing the complaint against them, and plaintiffs cross motion for summary judgment in her favor on the issue of liability against the taxi defendants, are both granted, the complaint and all cross claims are severed and dismissed against defendants GVC II, Inc., Filiberto Quinones, Metropolitan Transit Authority and New York City Transit Authority-Access-A-Ride, and plaintiff is awarded summary judgment in her favor on the issue of liability against Bravflo Corp. and Mamadou Dao; and it is further ORDERED that the taxi defendants' motion for consolidation is granted, the case currently pending in Supreme Court, Bronx County, entitled Quinones v Bravflo Corp. and bearing index No. 20677/2017E, is consolidated for all purposes in this court under Index No. 151247120 I 6, and the pleadings in _each action shall stand as the pleadings in the cons~lidated action; and it is further ORDERED that the consolidated action shall bear the following caption: ---------------------------------------------------------------)( ZINA MINGO and FELIBERTO QUINONES, Plaintiffs, -againstBRAVFLO CORP. and MAMADOU DAO, Defendants. ---------------------------------------------------------------)( And it is further 151247/2016 MINGO, ZINA vs. BRAVFLO CORP. Motion No. 001 003 Page 4 of 6 4 of 6 [*FILED: NEW YORK COUNTY CLERK 03/16/2018 02:40 PM 5] NYSCEF DOC. NO. 69 INDEX NO. 151247/2016 RECEIVED NYSCEF: 03/16/2018 ORDERED that, upon searching the record, Filiberto Quinones is awarded summary judgment in his favor on the issue of liability against defendants Bravflo Corp. and Mamadou Dao; and it is further ORDERED that counsel for the Access-A-Ride defendants is directed toe-file a completed Notice to County Clerk (Form EF-22), which shall bee-filed as a "Notice to County ' . . Clerk - CPLR 8019 (c)" in the drop-down menu, with a copy of this order attached thereto, within 20 days after this order is entered, UNDER THE NEW YORK C<;>UTNY INDEX NUMBER, and the New York County Clerk is directed to mark this Court's records to effectuate the consolidation, to amend the caption to remove GVC II, Inc:, Feliberto Quinones, Metropolitan Transit Authority and New York City Transit Authority-Access-A-Ride from the · caption as defendants, and t6 add Feliberto Quinones as a plaintiff in the consolidated action; and it is further ORDERED that counsel for the taxi defendants is directed to e-mail a copy of this order to the General Clerk's Office, at genclerk-ords-non-mot@nycourts.gov, with the subject "Service of Order -- Consolidation," and the Clerk is directed to effectuate the transfer, consolidation, and amendment of the caption; and it is further ORDERED that counsel for the taxi defendants is directed toe-file a completed Notice ·to County Clerk (Form EF-22), which shall be e-'filed as a "Notice to County Clerk - CPLR 8019 (c )" in the drop-down menu; with a copy of this order attached thereto, within 20 days after this order is entered, UNDER THE BRONX COUNTY INDEX NUMBER, and the Clerk of Bronx 151247/2016 MINGO: ZINA vs. BRAVFLO CORP. Motion No. 001 003 · Page 5 of 6 5 of 6 [*FILED: NEW YORK COUNTY CLERK 03/16/2018 02:40 PM 6] NYSCEF DOC. NO. 69 INDEX NO. 151247/2016 RECEIVED NYSCEF: 03/16/2018 County is directed. to effectuate the transfer of the action entitled Quinones v Bravfl,o Corp. and bearing index No. 20677/201 ?E to this Court for consolidation; and it is further ORDERED that a status conference will be held on the consolidated action in Part 2, 80 Centre Street, Room 280 on July 10, 2018 at 2: 15 p.m. 3/8/2018 DATE CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: ~ CASE DISPOSED GRANTED D NON-FINAL DISPOSITION DENIED GRANTED IN PART SETTLE ORDER SUBMIT ORDER DO NOT POST FIDUCIARY APPOINTMENT . 0 D OTHER REFERENCE Page 6 of 6 151247/2016 MINGO, ZINA vs. BRAVFLO CORP. Motion No. 001 003 6 of 6

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