Moss v Panama Yellow Taxi Inc.

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[*1] Moss v Panama Yellow Taxi Inc. 2018 NY Slip Op 50331(U) Decided on March 12, 2018 Supreme Court, Queens County Modica, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 12, 2018
Supreme Court, Queens County

Maurice M. Moss, Plaintiffs,

against

Panama Yellow Taxi Inc. et al., Defendants.



704867/2016



For Plaintiff: The Bagley Firm, P.C., by Nicolas Bagley, Esq., 903B Sheridan Ave., Bronx, New York 10451

For Defendants Panama Yellow Taxi Inc. and Mohammad G. Mazumder: Baker, McAvoy, Morrissey & Moskovits, P.C., by John McAvoy, Esq., One Metro Tech Center, Brooklyn, New York 11201

For Defendant Charlita Cecelia Cardwell: Smith Mazure Director Wilkins Young & Yagerman, P.C., by Robert J. Paliseno, Esq., 111 John Street, New York, NY 11042
Salvatore J. Modica, J.

Papers Numbered NYSCEF Doc. Nos. 43-60



SALVATORE J. MODICA, J.:

This case concerns a passenger who "doored" a cyclist while exiting a taxi. Specifically, the motion and cross motion stem from personal injuries allegedly sustained by a bicyclist in lower Manhattan, in the afternoon of October 28, 2014, when he struck the open, rear passenger door of a taxi. The plaintiff alleges that the taxi passenger, co-defendant Charlita Cecelia Cardwell ("Cardwell"), opened the door negligently in the vehicle owned by defendant Panama Yellow Taxi Inc. ("Panama") and driven by co-defendant Mohammad G. Mazumder ("Mazumder"). Cardwell, the passenger, seeks summary judgment dismissing both the complaint and all cross claims as against her.

First, as a general proposition, there can be no dispute that a taxi is a common carrier. This Court has previously stated that, as such, the primary purpose of a taxi driver is to carry safely. See, Tinsley v. Taxi & Limousine Comm'n, — Misc 3d &mdash, 62 N.Y.S.3d 769 (Sup. Ct. Queens County 2017).

Although opposing the motion, neither counsel for the plaintiff nor the attorneys for defendants Panama and Mazumder cite to any transcripts of the examinations before trial ("EBT") that would indicate how the plaintiff may have been negligent. This Court thus undertook the task of reading the voluminous EBT transcripts. The plaintiff bicyclist admits that his bike was equipped with a bell. EBT of plaintiff Moss, page 139. There is no indication [*2]whether plaintiff rang the bell. Co-defendant Cardwell testified that the accident occurred in the middle of a work day and that she did not consume any alcohol that day prior to the accident. EBT of co-defendant Cardwell, pages 10-11.

VTL sections 370 and 388 require the owner and driver of a taxi or a vehicle for hire to be insured. In Kohl v. American Transit Ins. Co., 15 NY3d 763 (2010), aff'g 59 AD3d 681 (2nd Dept. 2009), the New York Court of Appeals stated and held:



Kristopher Kohl, a passenger in a taxicab, was sued by a bicyclist who claimed that he was injured when Kohl opened the taxi's door. The Appellate Division correctly held that Kohl was not insured under the taxi owner's policy of automobile liability insurance. The policy says that it "shall inure to the benefit of any person legally operating" the insured vehicle in the business of the insured. The word "operating" cannot be stretched to include a passenger's riding in the car or opening the door.

Id. at 764; accord, Swee v. Vals Trans, Inc., 225 AD2d 113 (1st Dept. 1996), lv. to appeal denied, 90 NY2d 802 (1997) (business automobile policy of taxi cab company did not provide liability coverage to passengers for their alleged negligence in opening cab door into path of bicyclist; passengers did not qualify as "operator" of vehicle, and liability coverage for damages "resulting from the use" of taxi cab merely extended liability coverage for owner and its drivers as result of passengers' negligent opening of taxi cab door, but did not provide liability coverage for passengers).

John McEvoy, Esq., counsel for Panama and Mazumder, however, notes that "VTL § 388 does not insulate the person who opens the door or is otherwise the active tortfeasor from liability" and reminds the Court simply that "[s]ummary judgment is a drastic remedy." See NYSCEF Doc. No. 59, paras. 7 & 9. Other than the stylings of Mr. McEvoy as an Ex Cathedra pronouncement, his naked observation is devoid of any factual support from the voluminous EBT transcripts to explain how Cardwell, the taxi passenger here, may have been negligent. No attempt is made to quote from pertinent EBT transcript passages to show how Cardwell, the taxi passenger, may have been negligent.

Thus, as is so often the case by lawyers who make observations and expect the courts to do independent legal research to fill in the blanks, the burdens placed on this Court were serious. Aside from reading the EBT transcripts, this Court engaged in its independent legal research. See, Leval v. Dugoni, 444 So. 2d 778, 780 (La. Ct. App. 1984) (cab driver allowed his intoxicated passenger to exit the taxi without first warning him that he had stopped on the left side of the street; driver was held liable); Intriligator v. Goldberg, 299 Mass. 333, 12 N.E.2d 730 (1938) (where a passenger, who put her hand in the door jamb of a taxicab to assist herself in rising to alight, sustained injuries when passenger who alighted ahead of her slammed the door, taxicab driver was not liable for injuries where passenger who had slammed door was not driver's agent and accident was an event which driver could not anticipate); see generally, Annot., "Liability for injury or damage caused in collision with, or avoiding collision with, open door of parked automobile," 92 A.L.R.2d 1037 (1963).

Cardwell's motion for summary judgment to dismiss the complaint and all cross-claims only as against her is thus granted. The complaint and all cross claims are dismissed only as to co-defendant Cardwell and the remainder of the action is severed.

The parties shall appear at the Trial Scheduling Part, as they have been advised, at the courthouse located at 88-11 Sutphin Boulevard, Jamaica, New York 11435, on April 23, 2018, at 9:30 A.M., as already scheduled, for the trial of the action.

The foregoing constitutes the decision, order, and opinion of the Court.



Dated: Jamaica, New York

March 12, 2018

Honorable Salvatore J. Modica J.S.C.