Gyesie v New York City Tr. Auth.

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Gyesie v New York City Tr. Auth. 2018 NY Slip Op 32560(U) October 12, 2018 Supreme Court, New York County Docket Number: 151265/2017 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. [* 1] INDEX NO. 151265/2017 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 10/12/2018 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. KATHRYNE. FREED PART IAS MOTION 2 INDEX NO. 151265/2017 Justice ----------------------------------------------------------------------------X GEORGINA GYESIE, MOTION SEQ. NO. 001 Plaintiff, -vNEW YORK CITY TRANSIT AUTHORITY, CITY OF NEW YORK, ACCESS A RIDE, CARERIDE PARATRANSIT LLC, METROPOLITAN TRANSIT AUTHORITY BUS COMPANY, RICKY MCCANTS, MV PUBLIC TRANSPORTATION INC., and TAMIKAH ANDERSON, DECISION AND ORDER Defendants. --------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 37, 38, 39, 40, 41, 42,43,44,45 SUMMARY JUDGMENT were read on this motion to/for Upon the foregoing documents, it is ordered that the motion is granted. In this action arising from a motor vehicle collision, defendants New York City Transit Authority ("NYCT A"), City of New York ("the City"), Careride Paratransit LLC ("Careride"), Metropolitan Transit Authority Bus Company ("MT A Bus Company"), and Ricky McCants ("McCants") move, pursuant to CPLR 321 l(a)(7), for summary judgment in favor of the City. 1 After a review of the motion papers, as well as a review of the relevant statutes and case law, the motion, which is unopposed by plaintiff Georgina Gyesie ("Gyesie"), is granted. 1 This Court notes initially that motions for summary judgment are brought pursuant to CPLR 3212, not CPLR 3211 (a)(7), which pertains to motions to dismiss an action for failure to state a claim. However, after reviewing the submitted papers, this Court will treat the motion as one for summary judgment under CPLR 3212, as well as for dismissal under CPLR 3211 (a)(7). (See Monteferrante v New York City Fire Dept., 63 AD2d 576, 576 [1st Dept 1978) (where the motion is denominated as one "For Summary Judgment" but the body of the motion seeks an order to dismiss the complaint pursuant to CPLR 3211 [a)[7), courts may properly treat the motion "in its hybrid aspect, that is, as one for summary judgment and for dismissal under CPLR 3211 (a)[7)").) 151265/2017 GYESIE, GEORGINA vs. NEW YORK CITY TRANSIT Motion No. 001 1 of 5 Page 1of5 [* 2] INDEX NO. 151265/2017 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 10/12/2018 FACTUAL AND PROCEDURAL BACKGROUND: On December 5, 2015, plaintiff was allegedly injured in a motor vehicle accident that occurred at the intersection of Washington Avenue and Thompson Street in Manhattan. (Doc. 38 at 1-2.) Plaintiff commenced this action against defendants on February 6, 2017 by filing a summons and verified complaint. (Doc. 39.) The claim brought against the City stems from her allegation that it was ne~ligent in the ownership, operation, management, use, and control of the vehicle in which plaintiff was a passenger during the accident. (Id. at 13-14.) Defendants NY CTA, the City, Careride, MT A Bus Company, and McCants now move, pursuant to CPLR 3211 (a)(7), for summary judgment dismissing the complaint as against the City. (Doc. 38.) They assert that, at the time of the accident, NY CTA owned the subject vehicle and that it was operated by Mccants during the course of his employment by non-party Premier Paratransit. (Id. at 2.) Defendants submit the affidavit of Robin Cooper ("Cooper"), an employee of the MTA, who states that the subject vehicle was owned by NY CTA but was registered to Careride, which provides public paratransit services on behalf ofNYCTA. 2 (Doc. 42 at 2.) . Therefore, defendants argue, because the City had no ownership interest in the vehicle and was not responsible for its operation at the time, the City owed no duty of care toward plaintiff and cannot be held liable for the injuries stemming from her alleged accident. (Doc. 38 at 2-3.) In a letter dated October 3, 2018, plaintiff indicated to this Court that she would take no position with respect to defendants' motion and that she was not planning to submit opposition papers. (Doc. 45.) 2 There is a slight inconsistency as to the New York State registration number of the vehicle at issue. Plaintiff's complaint charges defendants with the negligent operation ofa vehicle with New York registration number 75867 LA. (Doc. 39 at I I.) Cooper's affidavit in support of defendants' motion lists the vehicle's registration number as 7867LA. (Doc. 42 at 2.) However, this Court will ignore that inconsistency as the moving defendants admit that the City was neither the owner nor the operator of the vehicle. (Docs. 38, 42.) 151265/2017 GYESIE, GEORGINA vs. NEW YORK CITY TRANSIT Motion No. 001 2 of 5 Page 2 of 5 [* 3] INDEX NO. 151265/2017 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 10/12/2018 LEGAL CONCLUSIONS: A party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of Jaw on the undisputed facts. (See Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985].) In so doing, the movant must produce sufficient evidence to eliminate any issues of material fact. (Id.) The threshold question in tort cases is whether the defendant owed a duty of care toward the injured party. (See Espinal v Melville Snow Contrs., Inc., 98 NY2d 136, 138 [2002].) Here, the City did not owe a duty of care toward plaintiff at the time of her accident because the subject vehicle was owned by defendant NYCT A and was operated by defendant McCants. (Docs. 38, 42.) Moreover, plaintiff has not raised any triable issue of fact in regard to the vehicle's ownership because plaintiff has not taken a position on defendants' motion. (Doc. 45.) Absent a showing that the City had any interest in the vehicle, plaintiff cannot maintain a cause of action against it. (See Farrulla v Happy Care Ambulette Inc., 125 AD3d 529, 530 [I st Dept 2015] (company was not liable for plaintiffs injuries because it was not the owner of the vehicle at issue).) In accordance with the foregoing, it is hereby: ) ORDERED that defendants New York City Transit Authority, City of New York, Careride Paratransit LLC, Metropolitan Transit Authority Bus Company, and Ricky McCants' motion for summary judgment in favor of the City of New York is granted; and it is further 151265/2017 GYESIE, GEORGINA vs. NEW YORK CITY TRANSIT Motion No. 001 3 of 5 Page 3 of 5 [* 4] INDEX NO. 151265/2017 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 10/12/2018 ORDERED that defendant City of New York is no longer a party to this action, as it is not liable for plaintiff Georgina Gyesie' s injuries; and it is further ORDERED that the new caption shall read ------------------------------------------------------------)( GEORGINA GYESIE, Index No. 151265/2017 Plaintiff, -against- NEW YORK CITY TRANSIT AUTHORITY, ACCESS A RIDE, CARERIDE PARA TRANSIT LLC, METRO POLITAN TRANSIT AUTHORITY o BUS COMPANY, RICKY MCCANTS, MV PUBLIC TRANSPORTATION INC., and T AMIKAH ANDERSON, Defendants. ------------------------------------------------------------)( and it is further ORDERED that plaintiffs remaining causes of action shall continue against remaining defendants; and it is further ORDERED that, within 20 days of the entry of this order, defendants' counsel shall serve a copy of this order with notice of entry on all parties and on the County Clerk (Room l41B) at 60 Centre Street and the Clerk of the Trial Support Office (Room 158) at 60 Centre 151265/2017 GYESIE, GEORGINA vs. NEW YORK CITY TRANSIT Motion No. 001 4 of 5 Page 4 of 5 [* 5] INDEX NO. 151265/2017 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 10/12/2018 Street, who are directed to mark the Court's records to reflect the changes in the caption herein; and it is further ORDERED that all remaining parties are to appear for a preliminary discovery conference on October 23, 2018, at 2:15 PM in Room 280 at 80 Centre Street; and it is further ORDERED that this constitutes the decision and order of this Court. 10/12/2018 DATE CHECK ONE: CASE DISPOSED GRANTED D NON-FINAL DISPOSITION DENIED GRANTED IN PART APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 151265/2017 GYESIE, GEORGINA vs. NEW YORK CITY TRANSIT Motion No. 001 5 of 5 D D OTHER REFERENCE Page 5 of 5

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