Perez v Ventura

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Perez v Ventura 2018 NY Slip Op 34117(U) December 20, 2018 Supreme Court, Westchester County Docket Number: Index No. 54520/2017 Judge: Lawrence H. Ecker 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: 1] WESTCHESTER COUNTY CLERK 01/02/2019 11:58 AM NYSCEF DOC. NO. 42 INDEX NO. 54520/2017 RECEIVED NYSCEF: 01/02/2019 To commence commence the the statutory statutory To time time for for appeals appeals as of of right right (CPLR 5513[a», you are (CPLR 5513[a]), you advised to to serve serve a copy copy advised of this this order, order, with with notice notice of of entry, entry, upon upon all parties. parties. of SUPREME COURT COURT OF THE NEW YORK SUPREME THE STATE STATE OF NEW YORK COUNTY OF WESTCHESTER COUNTY WESTCHESTER -----------------------------------------------------------------------------X -----------------------------------------------------------------------------)( PEREZ, IRIS PEREZ, Plaintiff, Plaintiff, DECISION/ORDER DECISION/ORDER -against -against INDEX INDEX NO. 54520/2017 54520/2017 JOSE VENTURA, COUNTY OF WESTCHESTER, WESTCHESTER COUNTY DEPARTMENT OF TRANSPORTATION, LIBERTY LINES TRANSIT, INC. and BEE-LINE BUS, Defendants. Motion date: 11/07/18 Motion date: 11/07/18 Mot. Mot. Seq. Seq. 1 -------------------------------------------------------------------------------X ECKER, J. The through 12 were were read on the the motion of JOSE JOSE The following following papers papers numbered numbered 1 through motion of VENTURA, COUNTY COUNTY OF WESTCHESTER, VENTURA, WESTCHESTER, WESTCHESTER WESTCHESTER COUNTY COUNTY DEPARTMENT OF TRANSPORTATION, TRANSPORTATION, LIBERTY LIBERTY LINES LINES TRANSIT, BEEDEPARTMENT TRANSIT, INC. and BEELINE BUS ("defendants"), ("defendants"), made made pursuant pursuant to CPLR order granting granting LINE CPLR 3212, 3212, for for an order summary judgment dismissal of the IRIS PEREZ ("plaintiff'): summary judgment and dismissal the complaint, complaint, as against against IRIS PEREZ ("plaintiff'): NUMBERED NUMBERED PAPERS PAPERS 1-10 1-10 11 11 Notice of of Motion, Motion, Affirmation, Affirmation, Exhibits Exhibits A-H A-H Notice Affirmation Affirmation in Opposition Opposition Affirmation in Reply Reply Affirmation 12 Upon the the foregoing foregoing papers, papers, the Upon the court court determines determines as follows: follows: Plaintiff sustained serious serious injury when the the vehicle vehicle she she was was operating operating Plaintiff alleges alleges she sustained injury when came owned by the the County County of of Westchester, Westchester, managed cc;lme into contact contact with the the bus owned managed by Liberty Lines, Lines, and operated operated at the May 12, Liberty the time time by Ventura. Ventura. The The accident accident occurred occurred on May 2016, about 3:10 3:10 p.m. on McLean McLean Avenue between the intersection of 2016, at or about Avenue in Yonkers, Yonkers, between the intersection of South Broadway Broadway and Romaine Romaine Avenue. South Avenue . According to Ventura, Ventura, as testified deposition, the the bus, while while stopped stopped at a . According testified to in his deposition, was passed passed by the car plaintiff. Each vehicle bus stop, was car driven driven by plaintiff. vehicle was was traveling traveling in an easterly direction. direction. After After discharging discharging and picking picking up passengers, passengers, which easterly which took took -1-1- 1 of 4 [*FILED: 2] WESTCHESTER COUNTY CLERK 01/02/2019 11:58 AM NYSCEF DOC. NO. 42 INDEX NO. 54520/2017 RECEIVED NYSCEF: 01/02/2019 traveling easterly route, traveling approximately three minutes, the resumed its route, easterly at about about 10 bus resumed the bus three minutes, approximately parking the into car her pulled had who miles per hour. A short distance later, plaintiff, who pulled her car into the parking plaintiff, later, miles per hour. short distance cutting her, bus approached suddenly veered veered into the easterly travel lane as the the bus approached cutting travel lane the easterly lane, suddenly the right with the collided with off the and causing impact. The plaintiff's car car collided right of plaintiffs front of left front The left the impact. causing the the bus, and off east separating line yellow double the front of the bus, causing the bus to travel over the double yellow separating east over travel bus causing the front of the attempting to was attempting she was denies she bound from from westbound traffic. Plaintiff, Plaintiff, in her deposition, denies her deposition, westbound traffic. bound Ventura. of Ventura. the conduct make a U-turn, U-turn, and faults accident on the conduct of the accident faults the make the bus, from the surveillance tape support of of the the motion, motion, defendants submit the the surveillance tape from defendants submit In support then recurb to its right, then the curb toward the which seems to show show plaintiffs plaintiff's car having pulled pulled in toward car having which seems signal rear left plaintiff's that appears It entering the traffic lane as the bus approached. appears that plaintiff's rear signal approached. the bus entering the traffic lane the of the support of evidence in support further evidence light was prior the the time time of of the impact. As further the impact. just prior was on just light passenger several passenger report, several accident report, motion, defendants defendants submit uncertified police police accident submit an uncertified motion, Jaime Mack, "courtesy unsworn statement passenger Jaime Mack, plaintiff's plaintiff's from bus passenger statement from cards," an unsworn "courtesy cards," for Liberty supervisor for Scavelli, a supervisor of Mario accident report, report, and and the report and deposition Mario Scavelli, Liberty deposition of the report accident Lines, who employer. Ventura's employer. who is Ventura's Lines, evidence tenders evidence only if it tenders The moving party party is entitled judgment only summary judgment entitled to summary The moving New Winegrad case. the from sufficient to eliminate material issues of fact from the case. Winegrad v New York fact of issues material all eliminate sufficient New of City v Zuckerman City of New York, University Medical Center, 64 NY2d NY2d 851,853 [1985]; Zuckerman 851, 853 [1985]; Medical Center, University there judgment, there summary judgment, obtain summary order to obtain 49 NY2d 557, 562 Put another another way, in order [1980]. Put 562 [1980]. 49 NY2d fact of issue triable of color the even must be no triable issue of fact presented ... even the color of a triable issue of fact ... presented fact of issue triable must 2004], quoting 656 [2d Dept AD3d 656 forecloses remedy. In re Cuttitta Cuttitto Family Dept 2004], quoting Family Trust, 10 AD3d the remedy. forecloses the prima makes a prima party makes LNL Constr. v MTF 190 AD2d Dept 1993]. 1993]. If a party 714, 715 [2d Dept AD2d 714,715 Indus., 190 MTF Indus., LNL Constr. the bears party opposing the judgment, facie showing of its entitlement to summary judgment, the opposing party bears the summary entitlement facie showing of Zuckerman v City fact. Zuckerman of fact. burden of issue of City of of New New triable issue of a triable existence of the existence establishing the of establishing burden summary for summary motion for 320 [1986]. York, supra; NY2d 320 [1986]. On a motion Hosp., 68 NY2d Prospect Hosp., Alvarez v Prospect supra; Alvarez court the court exists, and the issue exists, factual issue judgment, the court's court's function determine if a factual function is to determine judgment, the the issues that the appears that clearly appears must not not weigh credibility of unless it clearly issues are witnesses unless of witnesses the credibility weigh the must merely presented merely evidence presented or evidence testimony or feigned not genuine, the testimony conflict in the and a conflict genuine, and feigned and not 2012]. Dept [2d AD3d 91 raises an issue of fact. Brown v Kass, AD 3d 894 Dept 2012]. issue of fact. Brown Kass, raises accident police accident the police value to the At probative value ascribe probative declines to ascribe court declines the court outset, the the outset, At the of none as cards," "courtesy the or report, the unsworn, untested untested Mack Mack statement, statement, the "courtesy cards," none of the unsworn, report, the hearsay the business these meet the business records records exception exception to the hearsay of the criteria of the criteria documents meet these documents signed who signed the individuals of the any of rule, as set Neither Mack Mack nor nor any individuals who 4518(a). Neither CPLR 4518(a). forth in CPLR set forth information. the impart to duty business duty the cards, cards, including Mack, were impart the information. under a business were under including Mack, the 4 [2d AD3d 17 46 AD3d Johnson [1930]; Hochhauser Hochhauser v Electric Electric Ins. Co., 46 174 253 NY 124 [1930]; Johnson v Lutz, 253 accident, the witness not was Dept 2007]. Further, the responding police officer was not a witness to the accident, officer police responding the Further, Dept 2007]. hearsay rule. nothing stated stated in his report report constitutes constitutes a separate separate exception exception to the the hearsay and nothing witness not a witness was not because Scavelli value because Likewise, the Scavelli report report lacks lacks probative probative value Scavelli was the Scavelli Likewise, accident. to the the accident. were retained unsworn to, were which are unsworn contrast, the parties, which retained by the parties, of the transcripts of the transcripts In contrast, -2-2- 2 of 4 [*FILED: 3] WESTCHESTER COUNTY CLERK 01/02/2019 11:58 AM NYSCEF DOC. NO. 42 INDEX NO. 54520/2017 RECEIVED NYSCEF: 01/02/2019 parties, without without objection objection for motion. the parties, for 60 days, days, and as such such are admissible admissible on the the motion. CPLR 3116(a). 3116(a). In addition, based on the addition, the videotape videotape is admissible admissible based the affidavit affidavit of See CPLR Neftali Negron, Negron, IT Director Director of Liberty Lines Lines Transit, Negron submits Neftali of Liberty Transit, Inc. Negron submits an affidavit, affidavit, which he states states that that he is the IT Director of Liberty. dated dated September September 19, 2018, 2018, in which Director of Liberty. [NYSCEF No. 30]. He states the date date of of the the accident accident the the camera camera system system [NYSCEF states that that on the captured inside inside and outside outside of reviewed the video captured of the bus. He further further avers avers that that he reviewed video submitted with with the the motion motion and true and accurate accurate copy copy and depiction depiction of submitted and the the video video is a true the images images captured captured on the the surveillance the date date in the surveillance video video taken taken from from the the bus on the question. He states that the kept in the regular regular course business of Liberty question. states that the video video was was kept course of of business of Liberty not been been altered modified. The preserved and maintained maintained in the the and had not altered or modified. The video video was was preserved regular course course of of business business of Liberty. This of Liberty. This affidavit affidavit is sufficient sufficient to authenticate authenticate the the video video regular true and fair fair representation representation of of the the events events depicted. depicted. Read Read v Ellenville Ellenville National National as a true 3d 408 408 [2d Dept Dept 2005]; NY3d 64 Bank, 20 AD AD3d 2005]; see see generally, generally, Zegarelli Zegarelli v Hughes, Hughes, 3 NY3d [2004]. [2004]. Having reviewed reviewed the the video, however, the court Having video, however, court cannot cannot conclusively conclusively find that that plaintiffs conduct conduct was was the precipitating cause impact. The plaintiffs the sole sole precipitating cause of the the impact. The fact fact that that Ventura Ventura testified that that he was was driving miles per per hour, and it appears plaintiff had her left testified driving 10 miles appears that that plaintiff rear signal signal light light on before before the impact, does prove definitively rear the impact, does not prove definitively that that she she was was attempting to make a U-turn or that she alone was responsible for the collision. attempting make U-turn that alone was responsible for the collision. In fact, the trier of of fact fact could could reasonably reasonably reach reach different issues. different conclusions conclusions as to these these issues. the trier Accordingly, the the court court finds finds that that it is not able matter of plaintiff's Accordingly, able to rule, as a matter of law, that that plaintiff's conduct was was the the sole sole contributing contributing factor conduct factor to the the accident. accident. The court court has has considered parties not specifically of the the parties specifically The considered the additional additional contentions contentions of addressed herein. herein. To the the extent relief requested requested by either party was addressed extent any any relief either party was not addressed addressed court, it is denied. denied. Accordingly, Accordingly, it is hereby hereby by the court, ORDERED that that the the motion motion of of defendants defendants VENTURA, VENTURA, COUNTY COUNTY OF ORDERED WESTCHESTER, WESTCHESTER WESTCHESTER COUNTY DEPARTMENT OF WESTCHESTER, COUNTY DEPARTMENT TRANSPORTATION, TRANSIT, INC. and BEE-LINE for an TRANSPORTATION, LIBERTY LIBERTY LINES LINES TRANSIT, BEE-LINE BUS, for order pursuant pursuant to CPLR CPLR 3212, 3212, dismissing plaintiff IRIS order dismissing the complaint, complaint, as against against plaintiff PEREZ, is denied; denied; and further PEREZ, and it is further ORDERED that the parties parties shall Part of of the the ORDERED that the shall appear appear at the the Settlement Settlement Conference Conference Part Court, Room Room 1600, 1600, on February February 5,2019, 5, 2019, at 9:15 9:15 a.m. Court, -3- 3 of 4 [*FILED: 4] WESTCHESTER COUNTY CLERK 01/02/2019 11:58 AM NYSCEF DOC. NO. 42 "INDEX NO. 54520/2017 RECEIVED NYSCEF: 01/02/2019 The foregoing foregoing constitutes constitutes the the Decision/Order Decision/Order of of the the court. court. The Dated: White White Plains, Plains, New New York York Dated: December December 2.b 2-b ,' 2018 2018 EN T E R, ENTER, , , '' Appearances: Appearances: Pena & Kahn, Kahn, PLLC PLLC Pena Attorneys for for Plaintiff Plaintiff Attorneys Via NYSCEF NYSCEF Via Keane & Bernheimer, Bernheimer, PLLC PLLC Keane Attorneys · Attorneys for for Defendants Defendants Via NYSCEF NYSCEF Via -4-4- 4 of 4

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