VE v Quality Transp. Corp.
Annotate this CaseDecided on May 22, 2018
Supreme Court, Kings County
VE, an infant by his Guardian, LAURIE HARRIS, Plaintiffs,
against
Quality Transportation Corp., "JOHN DOE No.1" (fictitious name, true name unknown), GARFIELD A. MYRIE and "JOHN DOE #2" (fictitious name, true name unknown), Defendants.
3194/2015
Attorney for Plaintiff
Lawrence D. Rogers, Esq.
Sackstein Sackstein & Lee, LLP
1140 Franklin Avenue, Suite 210
Garden City, New York 11530
(516) 248-2234
Attorney for Defendant
Wayne S. Stanton, Esq.
Silverman Shin & Byrne, PLLC
Wall Street Plaza
88 Pine Street, 22nd Floor
New York, New York 10005
(212) 779-8600 Defendant Pro Se (in Default)
Garfield A. Myrie
170-30 130th Avenue
Jamaica, New York 11334
Francois A. Rivera, J.
Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion of defendant Quality Transportation Corp., (hereinafter Quality or the defendant), filed on January 23, 2018, under motion sequence number three, for an order pursuant to CPLR 3212 granting summary judgment in its favor on the issue of liability and dismissing the complaint. The motion was opposed by Laurie Harris (hereinafter Harris or the plaintiff), the guardian of VE (hereinafter the injured infant).
Notice of motion
Affirmation in support
Exhibits A to N
Affirmation in opposition
Affirmation in reply
MOTION PAPERS
Quality's motion papers consist of an affirmation of its counsel and fourteen annexed exhibits labeled A through N. Exhibit A is a copy of the summons, verified complaint and Quality's verified answer with cross claim. Exhibit B is a copy of Harris' verified bill of particulars dated December 1, 2016. Exhibit C is a copy of an order with notice of entry, dated July 12, 2016, in which this Court found, after a hearing, that the injured infant was not capable of giving sworn testimony. Exhibit D is a copy of an order with notice of entry, dated June 10, 2016, in which this Court granted Harris' motion for a default judgment against defendant Garfield A. Myrie (hereinafter Myrie). Exhibit E is a copy of the note of issue dated November 21, 2017. Exhibit F is a copy of a certificate of disposition and transcript of the sentencing of defendant Myrie. The certificate of disposition evidenced Myrie's conviction by plea on November 14, 2016 to Assault in the Second Degree in violation of Penal Law §120.05 and Leaving the Scene of a Personal Injury Accident in violation of Vehicle and Traffic Law § 600.2A. The sentencing transcript evidenced, among other things, that on November 14, 2016, Myrie was sentenced to 364 days in jail on both counts to run concurrently. Exhibit G is a certified copy of the police report pertaining to the subject accident. Exhibit H is a copy of an incident report submitted to Quality by its bus driver, Mr. Claude Aubrey (hereinafter Aubrey). Exhibit I is a copy of school bus regulations promulgated by the Chancellor of [*2]New York City Board of Education. Exhibit J is described as maintenance records for the school bus involved in the subject accident. Exhibit K is the transcript of the deposition of Harris conducted on November 10, 2016. Exhibit L is the transcript of the deposition of Aubrey conducted on January 30, 2017. Exhibit M is the transcript of the deposition of Police Officer Andrew Thaler conducted on June 12, 2017. Exhibit N contains photographs of the accident scene from google maps, a diagram of the scene, and a copy of Aubrey's application to become a bus driver.
Harris has opposed the motion with an affirmation of counsel dated dated March 23, 2018. Quality replied with an affirmation of its counsel dated April 2, 2018.
BACKGROUND
On March 13, 2015, Harris, as guardian of the injured commenced the instant action for damages for personal injuries sustained by the injured infant, by filing a summons and verified complaint with the Kings County Clerk's office. The verified complaint contains forty four allegations of fact in support of a single cause of action for damages for personal injuries sustained by the injured infant due to the defendants' negligent ownership, operation, and control of their respective vehicles. Quality interposed a verified answer with cross claims.
Harris' verified complaint, bill of particulars and deposition transcript allege the following salient facts. On December 3, 2014, at 3:00 P.M., Claude Aubrey was operating a school bus while employed by Quality which he stopped at the corner of 227th Street and 119th Avenue in Queens, New York to discharge some of his student passengers, including the injured infant. The school bus was stopped with its red signals flashing and stop bar deployed on the left side of the bus. The injured infant resided the block behind and across the street from where the bus was stopped. The injured infant, who was six years old at the time, was allegedly discharged before his guardian Harris was there to receive him. The injured infant stepped out unaccompanied and walked along the side of the bus towards its rear. When the infant stepped off the curb into the street just behind the bus, he was struck and seriously injured by a vehicle operated by Myrie.
LAW AND APPLICATION
It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v Prospect Hospital, 68 NY2d 320 [1986]). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of material facts (Guiffirda v Citibank, 100 NY2d 72 [2003]).
A failure to make that showing requires the denial of the summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v Gervasio, 81 NY2d 1062 [1993]). If a prima facie showing has been made, the burden shifts to the opposing [*3]party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez, 68 NY2d at 324).
"Pursuant to CPLR 3212(b) a court will grant a motion for summary judgment upon a determination that the movant's papers justify holding, as a matter of law, "that there is no defense to the cause of action or that the cause of action or defense has no merit." Further, all of the evidence must be viewed in the light most favorable to the opponent of the motion (Marine Midland Bank v Dino & Artie's Automatic Transmission Co., 168 AD2d 610 [2nd Dept 1990])" (People ex rel. Spitzer v Grasso, 50 AD3d 535, 544 [1st Dep 2008]).
Negligence is lack of ordinary care. It is a failure to use that degree of care that a reasonably prudent person would have used under the same circumstances. Negligence may arise from doing an act that a reasonably prudent person would not have done under the same circumstances, or, on the other hand, from failing to do an act that a reasonably prudent person would have done under the same circumstances (see NY Pattern Jury Instruction Civil 2:10).
"In order to prevail on a negligence claim, 'a plaintiff must demonstrate (1) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom' " (Pasternack v Laboratory Corp. of Am. Holdings, 27 NY3d 817, 825 [2016] quoting Solomon v City of New York, 66 NY2d 1026, 1027 [1985]).
Quality does not dispute that it has a duty to safely discharge its infant student passengers from its school bus to their appropriate parent or guardian. Quality contends, however, that it breached no duty of care to the injured infant because the bus driver had its stop signs extended and red signal lights flashing when it stopped to discharge the injured infant to his guardian. Quality further contends that the injured plaintiff's injuries were due solely to the negligence of Myrie, its co-defendant.
However, Quality submitted the deposition transcript of Aubrey, its bus driver and Harris, the injured infant's guardian, which contained significant conflicting testimony as to the conduct of Aubrey immediately prior to the injured infant's accident. Aubrey testified that he remained on the bus and released some children, including the injured infant, to approximately fourteen waiting parents before the accident occurred.
Ms. Harris, on the other hand, testified that she saw Aubrey standing outside of the bus at the same time that she saw the injured infant and her other children walking outside. She further testified that her children including the injured infant were allowed off the school bus before she had a chance to arrive at the bus stop to pick them up. Furthermore, she observed the injured infant being struck by a vehicle when he entered the street before she had a chance to reach him. The conflicting testimony raises issues of credibility which cannot be resolved on a motion for summary judgment (see Giraldo v Twin Ambulette Service, Inc. 96 AD3d 903 [2nd Dept 2012]). The court's function on a motion for summary judgment is not to resolve issues of fact or to determine matters of [*4]credibility but merely to determine whether such issues exist (Green v Quincy Amusements, Inc.,108 AD3d 591 [2nd Dept 2013]).
Harris' testimony raises an issue of fact regarding the alleged lack of negligence of Quality. Clearly, a school bus driver allowing an unaccompanied six year old child into a public highway, street or private road with no adult to receive him would constitute a breach of a duty of due care to the child. The risk of a motor vehicle accident to a six year old child under these circumstances, is foreseeable.
There is also a separate basis for denying Quality's motion for summary judgment in its favor relating to a specific statutory duty found in Vehicle Traffic Law § 1174.
Vehicle Traffic Law § 1174 (b) provides in pertinent part as follows:
(b) The driver of such school bus, when receiving or discharging passengers who must cross a public highway, street or private road, shall instruct such passengers to cross in front of the bus and the driver thereof shall keep such school bus halted with red signal lights flashing until such passengers have reached the opposite side of such highway, street or private road. Whether such passengers are crossing such highway street or private road or discharging to the same side of such highway, street or private road, the driver of such bus shall keep such school bus halted with red signal lights flashing until such passengers are at least fifteen feet from the bus and either off the highway, street or private road or on a sidewalk.
There is no dispute that at the time of the subject accident, Aubrey was operating a school bus in the course of his employment with Quality. There is also no dispute that when Aubrey stopped at the bus stop at the corner of 227th Street and 119th Avenue, the injured infant's home was the block behind and across the street from where the bus had stopped. It is noted that Quality did not claim or establish that Vehicle Traffic Law § 1174 (b) did not apply to the instant action. Aubrey's deposition testimony establishes, however, that he did not instruct the injured infant to cross in front of the bus as required by Vehicle Traffic Law § 1174 (b). "As a rule, violation of a State statute that imposes a specific duty constitutes negligence per se, or may even create absolute liability" (Elliott v City of New York, 95 NY2d 730, 734 [2001]). The failure to instruct the six year old injured infant to cross in front of the school bus also raises an issue of fact as to Aubrey's and Quality's lack of negligence precluding summary judgment in Quality's favor.
CONCLUSION
Quality Transportation Corp. motion for an order pursuant to CPLR 3212 granting summary judgment in its favor on the issue of liability and dismissing the complaint is denied.
The foregoing constitutes the decision and order of this Court.
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