Matter of Schoharie Limousine Crash of Oct. 6 2018

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[*1] Matter of Schoharie Limousine Crash of Oct. 6 2018 2021 NY Slip Op 21079 Decided on April 2, 2021 Supreme Court, Albany County Hartman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on April 2, 2021
Supreme Court, Albany County

In the Matter of Schoharie Limousine Crash of October 6, 2018.

Michael Cavosie, Individually and as Administrator of the Estate of Rachael Cavosie, Deceased, Plaintiffs,

against

Shahed Hussain d/b/a Prestige Limousine and Chauffer Services and/or Hazy Limousine and/or Saratoga Luxury Limousines; Nauman Hussain; Malik Riaz Hussain; Mavis Discount Tire Inc.; Mavis Tire Supply, LLC; Mavis Tire Holdings, LLC; Mavis Tire New York, LLC; Mavis Tire Express Services Corp.; Mavis Tire Express Services TOPCO, L.P.; and Does 1 through 10, Defendants.



Jill Perez, as Administratrix of the Estate of Matthew Coons, Plaintiff,

against

Shahed Hussain, Individually and d/b/a Prestige Limousine and Chauffeur Services, Hasy Limousine and Saratoga Luxury Limousine, Nauman A. Hussain, Malik Riaz Hussain and Mavis Discount Tire, Inc., Defendants.



Kevin C. Cushing and Cynthia Fitzgerald, as Co-Administrators of the Estate of Patrick K. Cushing, Deceased, Plaintiffs,

against

Shahed Hussain d/b/a Prestige Limousine and Chauffer Services and/or Hazy Limousine and/or Saratoga Luxury Limousines; Nauman Hussain; Malik Riaz Hussain; Mavis Discount Tire Inc.; Mavis Tire Supply, LLC; Mavis Tire Holdings, LLC; Mavis Tire New York, LLC; Mavis Tire Express Services Corp.; Mavis Tire Express Services TOPCO, L.P.; and Does 1 through 10, Defendants.



Edward J. Halse, as Administrator of the Estate of Amanda D. Halse, Plaintiff,

against

Shahed Hussain a/k/a "Malik Shahid Hussain", a/k/a "Malik Shahid Shakir Hussain", a/k/a "Mike Hussain", a/k/a Malik Riaz Hussain", and a/k/a "Mike Begum", Individually and d/b/a Prestige Limousine and Chauffeur Services, d/b/a Hasy Limousine, and d/b/a Saratoga Luxury Limousine, Nauman A. Hussain, Malik Riaz Hussain, The Estate of Scott T. Lisinicchia, Mavis Tire Supply, LLC, Mavis Tire Holdings, LLC, and Mavis Tire Express Services Topco, L.P., Defendants.



The Estate of Brian G. Hough, by Jaclyn Schnurr, Administratrix, and Jaclyn Schnurr, Individually, Plaintiffs,

against

Shahed Hussain d/b/a Prestige Limousine and Chauffeur Services, and d/b/a Hasy Limousine, and d/b/a Saratoga Luxury Limousine, Nauman Hussain, Malik Riaz Hussain, The Estate of Scott T. Lisinicchia, Mavis Discount Tire, Inc., The Apple Barrel Country Store, and John Does 1-10, Defendants.



Keith Lisinicchia, as Administrator of the Estate of Scott Lisinicchia and Kim Lisinicchia, Plaintiffs,

against

Mavis Tire Supply, LLC, Mavis Discount Tire, Inc., Shahed Hussain individually, Shahed Hussain d/b/a Prestige Limousine & Chauffeur Services, Hasy Limousine, Saratoga Luxury Limousine, and Saratoga Luxury Limo; Nauman A. Hussain individually, Nauman A. Hussain aka shahed hussain d/b/a Hasy Limousine, Prestige Limousine & Chauffeur Services, Saratoga Luxury Limousine Saratoga Luxury Limo d/b/a Hasy Limousine and John Doe Numbers 1-5, Defendants.



Anthony Vertucci, as Administrator of the Estate of Erin McGowan and Colin McGowan, as Administrator of the Estate of Shane McGowan, Plaintiffs,

against

Shahed Hussain individually and d/b/a Prestige Limousine And Chauffeur Services, Nauman Hussain, The Estate of Scott Lisinicchia, Mavis Tire Supply, LLC, Mavis Tire Supply, LLC d/b/a Mavis Discount Tire, Mavis Tire Holdings, LLC, and Mavis Tire NY LLC, Defendants.



Elizabeth Muldoon, as Administratrix of the Estates of Adam G. Jackson and Abigail Jackson, Samuel J. Bursese, as Administrator of the Estate of Savannah Bursese, Linda King as Administratrix of the Estates of Allison King, Amy King Steenburg and Mary King Dyson, and Dawn Dyson as Administratrix of the Estate of Robert Dyson, Plaintiffs,

against

Shahed Hussain, aka "Malik Shahid Hussain," a/k/a "Malik Shaid Shikir Hussain," a/k/a "Malik Hussain," a/k/a "Malik Riaz Hussain," a/k/a "Mike Hussain," a/k/a "Mike Begum," a/k/a "Shaeed Hussain," a/k/a "Shahid Malik," individually and d/b/a Prestige Limousine and Chauffeur Services, d/b/a Hasy Limousine, and d/b/a Saratoga Luxury Limousine, Nauman A. Hussain, Malik Riaz Hussain, and Mavis Discount Tire, Inc., Defendants.



Thomas Rivenburg and Donna Rivenburg, As Co-Administrators of the Estate of Amanda R. Rivenburg, Plaintiffs,

against

Mavis Discount Tire, Inc., Mavis Tire Supply LLC, Mavis Tire NY LLC, Mavis Tire Express Services Corp., Mavis Tire Holdings LLC, and John Does 1-10, Defendants.



The Estate of James J. Schnurr, by Joan Schnurr, Administratrix, Plaintiff,

against

Shahed Hussain d/b/a Prestige Limousine and Chauffeur Services, and d/b/a Hasy Limousine, and d/b/a Saratoga Luxury Limousine, Nauman Hussain, Malik Riaz Hussain, The Estate of Scott T. Lisinicchia, Mavis Discount Tire, Inc., The Apple Barrel Country Store, and John Does 1-10, Defendants.



Janet Steenburg, as Administrator of the Estate of Axel Steenburg, Plaintiff,

against

Shahed Hussain, Individually and d/b/a Prestige Limousine and Chauffeur Services, Hasy Limousine and Saratoga Luxury Limousine, Nauman A. Hussain, Malik Riaz Hussain and Mavis Discount Tire, Inc., Defendants.



Kimberly Steenburg, as Administrator of the Estate of Richard Steenburg, Plaintiff,

against

Shahed Hussain, Individually and d/b/a Prestige Limousine and Chauffeur Services, Hasy Limousine and Saratoga Luxury Limousine, Nauman A. Hussain, Malik Riaz Hussain and Mavis Discount Tire, Inc., Defendants.





904159-20



Martin, Harding & Mazzotti, LLP

Thomas J. Mortati, Esq., and

Cassandra Kazukenus, Esq.

Liaison Attorneys for Plaintiffs

1222 Troy-Schenectady Road Niskayuna, New York 12309

Bond Schoeneck & King, PLLC

Michael R. Wolford, Esq.

Attorneys for Estates of Hough and Schnurr

350 Linden Oaks, Third Floor

Rochester, New York 14625

Yankwitt, LLP

Russell Yankwitt, Esq., and

Benjamin R. Allee, Esq.

Attorneys for Mavis Discount Tire

140 Grand Street, Suite 705

White Plains, New York 10601

Wilson Elser Moskowitz Edelman & Dicker, LLP

Marc J. Kaim, Esq.

Attorneys for Hussain Defendants

200 Great Oaks Boulevard, Suite 228

Albany, New York 12203

O'Connor, O'Connor, Bresee & First, PC

Dennis A. First, Esq

Attorneys for Apple Barrel

20 Corporate Woods Boulevard

Albany, New York 12211
Denise A. Hartman, J.

Defendants Mavis Discount Tire, Inc., Mavis Tire Supply LLC, Mavis Tire NY LLC, Mavis Tire Holdings LLC, Mavis Tire Supply LLC d/b/a Mavis Discount Tire Express Services Corp., Mavis Tire Express Services Topco, L.P., and Mavis Tire New York, LLC (hereinafter Mavis or the Mavis defendants) move pursuant to CPLR 3211 (a) (7) to dismiss the complaints and amended complaints against them in these twelve coordinated actions arising out of the limousine crash in Schoharie County on October 6, 2018.[FN1] Mavis contends that, as a matter of law, the claims against them must be dismissed because Mavis had no legal duty to plaintiffs under the rule of Espinal v Melville Snow Contrs. (98 NY2d 136 [2002]) and Stiver v Good & Fair Carting and Moving, Inc. (9 NY3d 253 [2007]), and because plaintiffs cannot prove proximate cause due to intervening events. Mavis also moves to dismiss claims for punitive damages and all cross claims against them for contribution or indemnity.

Liaison counsel has filed opposition to the motion on behalf of plaintiffs in all twelve coordinated cases. Plaintiffs argue that their complaints adequately allege that Mavis's negligent and grossly negligent actions breached a common law duty to them and were a contributing cause to the accident and ensuing loss of lives. Plaintiffs contend, in any event, that their allegations suffice to state a cause of action under one or more exceptions to the Espinal/Stiver no-duty rule. And they argue that, notwithstanding the Hussain defendants' alleged intervening actions, Mavis's actions causally contributed to the accident.[FN2] Counsel for the Hussain defendants [*2]and for Apple Barrel Country Store have also filed opposition to Mavis's motion. The Court held oral argument on February 16, 2021.

Because plaintiffs have alleged facts that may support findings of both duty and proximate cause, they have stated a cause of action against the Mavis defendants. And because plaintiffs have also alleged willful or intentional misconduct, they have stated a claim for punitive damages. Accordingly, Mavis's motion to dismiss plaintiffs' claims and defendants' cross claims is denied.



Background

On October 6, 2018, a tragic accident unfolded when a stretch limousine for hire — an altered 2001 Ford Excursion — crashed at the bottom of a hill at the intersection of Routes 30 and 30A in Schoharie County, New York. All 17 passengers, the driver of the limousine, and two persons in the parking lot of the Apple Barrel Restaurant, located at the bottom of the hill, were killed.

The administrators of the estates of those who lost their lives commenced lawsuits against Shahed Hussain, individually and doing business as ("d/b/a") Prestige Limousine and Chauffeur Services, among other d/b/as; Nauman Hussain, Shahed Hussain's son who was involved in the operations of the limousine business; Malik Riaz Hussain, Shahed Hussain's brother and Nauman Hussain's uncle; and Mavis Discount Tire, Inc. and other Mavis entities.[FN3] Defendants Shahed Hussain d/b/a Prestige Limousine and Chauffeur Services and Nauman Hussain have answered. On January 29, 2021, this Court denied Malik Riaz Hussain's pre-answer motion to dismiss for lack of personal jurisdiction and ordered limited jurisdictional discovery.

Plaintiffs allege a sequence of events which they claim shows that both the Hussain defendants and Mavis defendants, through acts of negligence, gross negligence, willfulness, agency, and collusion, caused or contributed to the unlawful operation of a dangerously defective vehicle for hire, resulting in the loss of so many lives on October 6, 2018. While the complaints are not identical, they contain substantially similar allegations; and counsel for the Mavis defendants agree that there is no reason to differentiate among them for purposes of this motion to dismiss under CPLR 3211 (a) (7) for failure to state a cause of action.

The Hussain defendants owned and operated a business in Saratoga County, New York. They offered limousine services for hire to the public at large. Among the vehicles they used in their business was an altered 2001 Ford Excursion, which seated 18 people. The Hussains purchased the altered Excursion in 2016. Plaintiffs allege that, because the vehicle capacity exceeded 15 passengers, the prior owners had registered it with the New York State Department of Transportation (NYS DOT) so that it could be used as a passenger vehicle for hire. Plaintiffs allege that the Hussains did not register the altered Excursion with the NYS DOT as a passenger vehicle for hire, but instead registered it improperly and purposefully with the New York State Department of Motor Vehicles as an 11-passenger vehicle to avoid more rigorous inspection, [*3]maintenance, and record-keeping regimens required by the NYS DOT.



Mavis's Repairs and Inspection of the Excursion

Plaintiffs allege that from 2016 through July 2018, the Hussain defendants brought the Excursion to the Mavis Discount Tire shop in Saratoga County on multiple occasions to be repaired and inspected. They allege that Mavis performed their services with negligence and gross negligence, and willfully in collusion with the Hussain defendants, to allow them to continue operating the Excursion for hire in their limousine business, despite its safety defects and unauthorized inspection.

Plaintiffs allege that in September 2016, two years before the accident, the Hussain defendants brought the Excursion to Mavis for repairs of its brake system. Mavis replaced the limousine's right rear brake rotor. At that time the rear brake line, essential for the hydraulics of the rear brakes, was significantly corroded, allegedly creating an unsafe brake system. Plaintiffs allege that while replacing the right rear brake rotor, Mavis caused the rear brake line to be bent and to collapse near the rear right wheel. And they allege that Mavis knew or should have known that the corroded, bent, and collapsed condition of the rear brake line needed to be replaced in order to prevent failure and damage to other components of the vehicle's brake system. Rather than replacing the defective parts, the Hussain defendants allegedly put a vice grip on the left rear brake hose to disable the brake and prevent its caliper and pad plates from coming into contact with its rotor. These actions allegedly caused the right rear brake to stop functioning and its caliper pistons to seize, the left rear brake to lose hydraulics, and the brake pedal to sink and occasionally not properly function, preventing the Excursion from properly and safely slowing and stopping when driven on public highways. Plaintiffs allege that these actions also contributed to progressive wear and tear on the front brakes, ultimately resulting in the catastrophic brake failure and crash on October 6, 2018.

In late April and early May 2018, four months before the accident, the Hussain defendants again brought the Excursion to Mavis for repairs to its brake system. Defendant Nauman Hussain told Mavis that the NYS DOT found the left rear brake was found nonfunctional and defective during a March 2018 roadside safety inspection, and that drivers had experienced a sinking or spongy pedal, improper slowing and stopping, vibration in the steering wheel, and a burning smell from braking. Mavis's May 11, 2018 service invoice stated: "Customer request 'Check Brakes'; Factory Rebuilt Caliper — Labor; Brake Hose/Line — Labor; Rear Brake Pads — 'Professional Brake Service' Labor; Brake Master Cylinder — Labor; Brake System Flush; NYS Safety/Emission Inspection." Plaintiffs allege that Mavis observed multiple problems in the brake system, including (1) contaminated brake fluid; (2) a corroded, bent, and collapsed rear brake line; (3) a defective brake master cylinder; (4) defective left and right rear brakes; (5) defective left and right front brakes. But, plaintiffs allege, Mavis replaced only three parts — the caliper, pads, and a hose for the left rear brake. Plaintiffs allege that, on or about May 4, 2018, Mavis purchased a brake master cylinder to install in the limousine as billed but instead returned it to the seller on May 12, 2018. And they allege that Mavis did not flush the limousine's brake system as billed but instead only bled the brake system. They allege that Mavis knew or should have known that each component needed replacing to prevent progressive and catastrophic brake failure.

Plaintiffs further allege that, on May 11, 2018, Mavis placed a DMV inspection sticker on the limousine. Mavis was a licensed DMV safety inspection station authorized to perform DMV safety inspections for light or heavy motor vehicles. Plaintiffs allege, however, that Mavis [*4]was not authorized to place a DMV sticker on the Excursion because it was a passenger vehicle for hire with a carrying capacity of 15 or more people, requiring a more rigorous NYS DOT inspection. According to plaintiffs, Mavis knew or should have known that the more rigorous NYS DOT inspection was required, and knew that it did not have legal authority or professional ability, certification, experience, expertise, or training to perform a DOT safety inspection for the 18-passenger stretch limousine. Plaintiffs allege that Mavis's placement of the standard DMV sticker on the windshield ostensibly allowed the Excursion to be operated as a passenger vehicle for hire on the public highways. According to plaintiffs, the limousine's grossly defective and unsafe brake system would have prevented it from passing either a proper NYS DOT or a proper DMV safety inspection.

Several of the amended complaints detail a conversation that occurred during Mavis's April/May 2018 servicing of the Excursion. They allege that the Mavis store manager had a conversation with Nauman Hussain regarding the defective brake system, the inadequacy of the repairs made to it, and its failure to slow or stop the limousine. The manager allegedly told Nauman Hussain, "[transmission] and brake fluid [do not] mix" and the limousine has "brakes now and I'm hoping it stays that way because if it happens again then you're gonna need the other three calipers." Mavis's store manager also told his service employees that the only repairs on the limousine's brake system would be the replacement of the master cylinder and the left rear brake calipers, pads, and hose, explaining that only those "limited" and "temporary" repairs would be done because Nauman Hussain was "cheap" and going to sell the Excursion. And, he allegedly told Nauman Hussain, "I'm the only place that works on 20-passenger limousines for Christ's sake." According to the manager, who was ultimately terminated, Mavis then illegally placed a DMV inspection sticker on the limousine without first conducting the full DMV safety inspection. Plaintiffs allege that this conversation shows that Mavis knew or should have known that the limited, temporary repairs were insufficient to fix the dangerous condition of the Excursion's brake system, and knew or should have known that the Excursion limousine required the more rigorous NYS DOT protocols and inspection sticker.



The NYS DOT's Roadside Inspections of the Excursion

Plaintiffs allege that the NYS DOT performed roadside inspection of the 2001 Ford Excursion Limousine twice in 2018 — once on March 21, 2018, and again on September 4, 2018, one month before the accident. Both times, the NYS DOT placed "out of service" stickers on the Excursion due to defective conditions. And, plaintiffs allege, in August 2018, the New York State Police cited the Hussain defendants' employee Scott Lisinicchia, the driver during the crash, for driving the Excursion without a proper license to operate the vehicle and for not having a proper NYS DOT registration. Plaintiffs further allege that the Hussain defendants directed Lisinicchia to operate the Excursion on October 6, 2018 knowing that he did not possess the proper license to operate the vehicle.

During the March 21, 2018 roadside inspection, the NYS DOT determined that the 2001 Ford Excursion Limousine was in poor operating condition due to several mechanical defects and was unfit to be on the road. The NYS DOT found that the brake system was at least 25% defective and had a constricted hydraulic brake line, and it noted that the Excursion had a seating capacity of more than 15-passengers, requiring registration. The NYS DOT placed an "out of service" sticker on the Excursion, meaning that it could not be used to carry passengers for hire until the noted mechanical defects were repaired and the NYS DOT re-inspected the vehicle. Plaintiffs allege that the "out of service" sticker was not supposed to be removed by anyone [*5]except a NYS DOT inspector certifying the vehicle was safe, and upon the inspector issuing a valid NYS DOT certification of inspection. Plaintiffs allege further that the Excursion was not properly re-inspected, and a valid NYS DOT certificate of inspection was never issued. Thus, according to plaintiffs, the Hussain defendants lacked authority to operate the Excursion as a passenger vehicle for hire.

On September 4, 2018, the NYS DOT conducted another roadside inspection of the Excursion and found that the defects and problems cited in the March 21, 2018 inspection had not been fully remedied. An "out of service" sticker was again issued and placed on the Excursion, prohibiting it from being operated as a passenger vehicle for hire until the defects were remedied. Plaintiffs allege that the Hussain defendants removed the "out of service" sticker that the NYS DOT had placed on the windshield and, without obtaining a proper re-inspection, continued to operate the Excursion in their business, renting it to plaintiffs' passenger-decedents for their trip to Cooperstown, New York on October 6, 2018.



Defendants' Alleged Failure to Comply with State and Federal Safety Standards

Plaintiffs also allege that the Mavis defendants, in failing to properly repair and inspect the Excursion, participated in violations of safety standards set by the NYS DOT and Federal Motor Carrier Safety Regulations, either as the Hussain defendants' agent, or by aiding and abetting the Hussain defendants' unlawful operation of the Excursion as a passenger vehicle for hire. According to plaintiffs, the 18-passenger Excursion was required to meet all inspection, maintenance, operation, repair, and safety requirements of New York's Bus and Passenger Carrying Vehicle safety regulations (17 NYCRR Parts 720, 721, 722, and 723), and the Federal Motor Vehicle Safety Standards (FMVSS, Title 49, Code of Federal Regulations). Pursuant to these regulations, the Hussain defendants were required to register the 2001 Ford Excursion Limousine with the NYS DOT as a commercial vehicle or "bus" having a capacity of 15 or more passengers, and ensure that it pass rigorous semiannual safety inspections by a NYS DOT inspector or authorized agent. Plaintiffs allege that Mavis acted as the Hussains' "repair agent" and "aided and abetted" the Hussain defendants in violating the NYS DOT and FMCSR regulations in April/May 2018, by performing inadequate repairs on the Excursion's brake system and affixing an unauthorized NYS DMV inspection sticker on the vehicle. They allege that the substandard repairs and ostensible inspection enabled the Hussain defendants to commercially use the defective and unsafe Excursion in their business and to defraud the passenger-plaintiffs into believing that the Excursion was safe and roadworthy.



Pending Criminal Charges Against Nauman Hussain

For his role in causing the accident, the Schoharie County District Attorney has charged Nauman Hussain with 20 counts of reckless manslaughter and 20 counts of criminally negligent homicide (see People v Nauman Hussain, Index Number 2019-33, Schoharie County Court). The criminal case against Nauman Hussain remains pending; his trial has been adjourned without date.



The National Transportation Safety Report

On September 29, 2020, the NTSB issued an accident report entitled "Stretch Limousine Run-Off-Road Crash Near Schoharie, New York — October 6, 2018," which sets forth the agency's findings and conclusions regarding the cause of the accident. The NTSB determined, on the evidence that it uncovered, that "the probable cause of the Schoharie, New York, crash was Prestige Limousine and Chauffeur Services' egregious disregard for safety, in dispatching a stretch limousine with an out-of-service order for passenger charter trips, resulting in the failure [*6]of the brake system while descending the steep grade of New York State Route 30" (NTSB Report, Executive Summary, page vii). It further faulted the NYS DOT for ineffective oversight of Prestige despite knowing that the business lacked operating authority and its inadequate repair verification process (see id.). And it faulted the NYS DMV for inadequate oversight of its state-licensed inspection stations and in its failure to properly register the limousine, enabling Prestige to circumvent compliance with more rigorous safety and inspection requirements (see id.).[FN4]



Analysis

In assessing defendants' motion to dismiss under CPLR 3211 (a) (7), the Court "must accept plaintiffs' allegations as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether plaintiffs have a cause of action" (Connolly v Long Is. Power Auth., 30 NY3d 719, 728 [2018]; see Leon v Martinez, 84 NY2d 83, 87-88 [1994]). Defendants bear the burden of establishing that the complaint fails to state a viable cause of action (see Connolly v Long Is. Power Auth., 30 NY3d at 728]). "Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss" (Carlson v American Intl. Group, Inc., 30 NY3d 288, 298 [2017] [internal quotation marks and citations omitted]). In assessing a motion under CPLR 3211 (a) (7), "a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint" (id. [internal quotation marks and citations omitted]).[FN5]

To establish tort liability for negligent or grossly negligent conduct, plaintiffs must allege that Mavis owed them a duty, that Mavis breached that duty, and that Mavis's breach of duty proximately caused their injuries (see Pasternack v Laboratory Corp. of Am. Holdings, 27 NY3d 817, 825 [2016], rearg denied 28 NY3d 956 [2016]). The question of duty is a threshold question of law for the Court (see id.; Landon v Kroll Lab. Specialists, Inc., 22 NY3d 1, 6 [2013], rearg denied 22 NY3d 1084 [2014])



Plaintiffs Sufficiently Allege a Cause of Action Against Mavis for Breach of Duty Arising from Its Contract with the Hussain Defendants, Based on Allegations that Mavis, through Negligence, Gross Negligence, and Intentional Acts, Launched an Instrument of Harm.

Mavis argues that, under Espinal v Mellville Snow Contrs. (98 NY2d 136 [2002]) and Stiver v Good & Fair Carting & Moving, Inc. (9 NY3d 253 [2007]), its contract for repair and inspection of the Hussain defendants' Excursion gave rise to no legal duty to third parties such as plaintiffs. The Court agrees that the analytical framework set forth in Espinal supplants the older [*7]common law cases upon which plaintiffs rely where injured litigants seek to assert a duty arising from a contract to which they were not parties (see Medinas v MILT Holdings LLC, 131 AD3d 121, 126-127 [1st Dept 2015] [holding that Espinal supplants prior common law authority and applying Espinal analytical framework in lawsuit against elevator inspection company]).

In Espinal, the Court of Appeals held that "a contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party" (Espinal v Melville Snow Contrs., 98 NY2d at 138). The Court identified only three exceptions to this general rule:

"(1) where the contracting party, in failing to exercise reasonable care in the performance of his duties, launches a force or instrument of harm;(2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties; and(3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely"

(see Espinal v Melville Snow Contrs., 98 NY2d at 140 [internal quotation marks and citations omitted]).

In Stiver, the Court of Appeals applied the Espinal framework to motor vehicle inspection cases (see Stiver v Good & Fair Carting & Moving, Inc., 9 NY3d at 257-258). There, a third party injured in an automobile accident sued an inspection station for failure to identify safety defects in the vehicle involved in a collision that caused him injury. The Court, relying on Espinal, held that the inspection station could not be sued in tort by the third party unless one of the Espinal exceptions applied. It held that the inspection station did not fall within the first exception for contractors who launch an instrument of harm because inspecting the car did not create or exacerbate a dangerous condition (see Stiver v Good & Fair Carting & Moving, Inc., 9 NY3d at 257). As for the second Espinal exception, the Court noted, there was no detrimental reliance, as plaintiff did not know whether or when the vehicle had been inspected, had never seen the vehicle before the accident, and had no relationship to its owner (see id.; accord Murray v Golley, 132 AD3d 1391 [4th Dept 2015] [finding inspection station owed no duty to third party plaintiff injured in accident with recently inspected motorcycle]).

The Court of Appeals in Stiver explained the policy rationale for refusing to impose a duty on inspection stations that would give rise to tort liability to third parties injured in automobile accidents:

"[A]s a matter of public policy, we are unwilling to force inspection stations to insure against risks 'the amount of which they may not know and cannot control, and as to which contractual limitations of liability [might] be ineffective' . . . . If New York State motor vehicle inspection stations become subject to liability for failure to detect safety-related problems in inspected cars, they would be turned into insurers."

(Stiver v Good & Fair Carting & Moving, Inc., 9 NY3d at 257-258, quoting Eaves Brooks Costume Co. v Y.B.H. Realty Corp., 76 NY2d 220, 227 [1990]).

The Court of Appeals has carefully weighed similar policy considerations when applying the Espinal analytical framework in a series of other cases where the plaintiffs' claims rested on a duty arising from a contract to which they were not in privity (see e.g., Pasternack v Laboratory Corp. of Am. Holdings, 27 NY3d 817 [2016] [holding drug testing laboratory had no duty to airline pilot for erroneous drug testing results based on contractor's failure to comply with federal regulations un-related to scientific integrity]; Davis v South Nassau Communities Hosp., 26 NY3d 563 [2015] [holding physicians owed a duty to third party injured in automobile [*8]accident where they failed to warn patient that medication impaired driving ability]; Landon v Kroll Lab. Specialties, Inc., 22 NY3d 1 [2013], rearg denied 22 NY3d 1084 [2014] [holding testing laboratory contracting with governmental entity owed a duty to probationer tested for drug use]; Church v Callanan Indus., 99 NY2d 104 [2002] [holding government contractor had no duty to person injured in motor vehicle accident based on failure to install guiderail]). In applying the Espinal exceptions, the Court of Appeals has cautioned that care be taken so that the exceptions do not "swallow up the general rule" (Church v Callanan Indus., 99 NY2d at 112).

Applying the Espinal framework here, the Court concludes that dismissal of plaintiffs' claims against Mavis is unwarranted at the pre-answer, pre-discovery stage of this litigation. Taking plaintiffs' allegations as true, and giving them every favorable inference, as the Court must do on this pre-answer motion to dismiss, they suffice to state a claim that Mavis is liable in tort for launching an instrument of harm which caused or contributed to the fatal October 6, 2018 crash.

First, plaintiffs plausibly allege that Mavis's actions of negligence and gross negligence in the course of repairing the Excursion's brake system directly created or exacerbated the defective and dangerous condition. They allege that, in September 2016, Mavis bent or crimped the hydraulic hose in the rear brake system, making the rear brake system worse than when the vehicle was brought in for service. And they allege that Mavis did not flush the brake system hydraulic line or replace the rotor, as billed. While these alleged acts arguably are attenuated in time from the accident that occurred two years later, the alleged acts relate to the defective and deteriorating brake system that continued to exist during Mavis's servicing in April and May of 2018, and which ultimately, catastrophically, failed on October 6, 2018. Such allegations alone may suffice to defeat Mavis's motion to dismiss at this pre-discovery stage of the litigation (cf. Morales v Digesare Mech., Inc., 176 AD3d 1442, 1443 [3d Dept 2019] [finding question of fact as to whether contractor launched instrument of harm by exacerbating dangerous condition on grassy field]; Kelley v Schneck, 106 AD3d 1175, 1179-1180 [3d Dept 2013], lv dismissed 21 NY3d 1069 [2013] [finding question of fact as to whether contractor launched instrument of harm in not installing anti-tip bracket on stove in residential apartment]; In re Lake George Tort Claims, 461 Fed Appx 39, 40 [2d Cir 2012] [finding no question of fact as to whether boat builder launched instrument of harm when it replaced canopy on tour boat that tragically capsized on Lake George, resulting in death of 20 passengers]).

Second, plaintiffs plausibly allege that Mavis launched an instrument of harm by acting with gross negligence in placing an unauthorized DMV inspection sticker on the Excursion in May 2018, when Mavis knew or should have known both that the brake system was unsafe and the 18-passenger vehicle for hire required a more rigorous NYS DOT safety inspection, which Mavis was not authorized to do. Gross negligence "is conduct that evinces a reckless disregard for the rights of others or smacks of intentional wrongdoing" (Soja v Keystone Trozze, LLC, 106 AD3d 1168, 1170 [3d Dept 2013]) [internal quotation marks and citations omitted]; see Abacus Fed. Sav. Bank v ADT Sec. Servs., Inc., 18 NY3d 675, 683 [2012]). Plaintiffs' allegations that Mavis's grossly negligent conduct, which "smacks of intentional wrongdoing," enabled the Hussains to continue to operate the Excursion in their business also suffice to defeat Mavis's motion to dismiss at this pre-discovery stage of the litigation.

And third, plaintiffs plausibly allege that Mavis acted with actual intent to allow the Hussains to operate the vehicle in their business. They allege that Mavis's conduct in affixing the [*9]DMV inspection sticker on the Excursion amounted to a fraudulent misrepresentation that the vehicle was safe and authorized to carry passengers for hire, and that the passenger-plaintiffs who hired the limousine for the Cooperstown trip relied on the DMV inspection sticker as indicating roadworthiness.[FN6] Plaintiffs further allege that Mavis "aided and abetted" the Hussain defendants' attempts to evade and violate the NYS DOT and FMCSA safety regulations applicable to buses and passenger vehicles for hire.[FN7] These allegations of intentional wrongdoing also suffice to defeat Mavis's motion to dismiss at this pre-discovery stage of the litigation.

Plaintiffs' allegations distinguish this case from Stiver, where the plaintiff alleged mere negligence in failing to detect safety-related problems when inspecting and affixing an inspection sticker on a personal automobile, where there was no evidence that the inspection made the vehicle less safe than it was beforehand, and where plaintiff had no relationship with the owner of the automobile or the inspection station and could not have relied on the fact of the inspection (see Stiver v Good & Fair Carting & Moving, Inc., 9 NY3d 253, 257 [2007]). For the same reason, this case is distinguishable from Murray v Golley (132 AD3d 1391 [4th Dept 2015]), where the Fourth Department similarly dismissed a claim that an inspection station negligently inspected an automobile involved in a collision with the plaintiff's motorcycle.

This case is also distinguishable from Bono v Halben's Tire City, Inc. (84 AD3d 1137 [2d Dept 2011]), upon which Mavis relies, involving a claim of negligent repairs. There, the Second Department dismissed a plaintiff's claim that the repair shop's work was insufficient to fully repair the brakes on a car involved in a collision with the plaintiff's vehicle (see Bono v Halben's Tire City, Inc., 84 AD3d at 1139-1140). Upon summary judgment motion, made after discovery, plaintiff was unable to adduce evidence that the repair shop made the brake function worse than when the vehicle was brought in so as to fall within the Espinal exception (see Bono v Halben's Tire City, Inc., 84 AD3d at 1139).

In contrast, plaintiffs here allege negligent conduct that created or exacerbated the dangerous condition and reckless and intentional conduct that "launched" as a passenger vehicle for hire a limousine with defective brakes that it was not authorized to inspect — acts which, if proven, may suffice to establish the requisite duty to plaintiffs to support their tort and wrongful death claims.

Finally, this case is still in its earliest stages. Unlike in Espinal and Stiver, where defendants moved for summary judgment following discovery, the Mavis defendants move pre-answer to dismiss the complaints (see Stiver v Good & Fair Carting & Moving, Inc., 9 NY3d at 256; Espinal v Melville Snow Contrs. 98 NY2d 136 [2002]). Plaintiffs have not yet had the [*10]benefit of discovery, which may uncover additional facts currently unavailable to them in support of their claims (see CPLR 3211 [d]). To be sure, plaintiffs' allegations are only allegations at this point. But if plaintiffs' allegations are borne out, they may well support the invocation of the Espinal exception for launching a dangerous instrument.



Plaintiffs Sufficiently Allege Facts Regarding Proximate Cause to Support a Cause of Action Against Mavis.

Mavis argues that, regardless of whether the Mavis defendants were found to owe a duty to plaintiffs under an Espinal exception, plaintiffs' allegations themselves demonstrate that they cannot establish that Mavis's actions proximately caused the crash and ensuing loss of lives. Plaintiffs counter that proximate cause is usually a question of fact, and that there can be more than one cause giving rise to liability. Based on the facts alleged, the Court cannot find that probable cause is lacking as a matter of law.

Evidence of negligence is not enough by itself to establish liability; plaintiffs must also prove that defendants' conduct was "a proximate, or legal, cause of the event that produced the harm sustained by the plaintiff[s]" (Hain v Jamison, 28 NY3d 524, 528 [2016]; accord Patel v State of New York, 167 AD3d 1111, 1112 [3d Dept 2018], lv denied 33 NY3d 910 [2019]). "Typically, the question of whether a particular act of negligence is a substantial cause of the plaintiff's injuries is one to be made by the factfinder, as such a determination turns upon questions of foreseeability and what is foreseeable and what is normal may be the subject of varying inferences" (id. at 529 [internal quotation marks and citations omitted]; see Pineiro v Rush, 163 AD3d 1097, 1099-1100 [3d Dept 2018]). But "the determination of proximate cause involves, among other things, policy-laden considerations; that is, the chain of causation must have an endpoint in order to place manageable limits upon the liability that flows from negligent conduct" (id. at 528 [internal quotation marks and citations omitted]).

Here, Mavis argues that plaintiffs cannot show proximate cause because the chain of causation was broken by the intervening acts of the Hussain defendants, including the Hussain defendants' decision not to register the Excursion with the NYS DOT as a passenger vehicle for hire subject to more rigorous inspection procedures; their placement of the vice grip on the right rear brake system, causing further damage to other parts of the brake system; their continued use of the Excursion in their business despite their knowledge of the defective brake system; and their continued use of the Excursion in their business despite two out-of-service orders the NYS DOT placed on the vehicle, with the second one occurring four months after Mavis's last inspection and repair and one month before the Hussain defendants rented the vehicle to plaintiffs. Mavis argues that Nauman Hussain's pending criminal charges underscore the gravity of these intervening acts, and preclude a finding that Mavis's actions were a proximate cause of plaintiffs' injuries.

Where the acts of a third person intervene between a defendant's conduct and a plaintiff's injury, the causal connection is not automatically severed, as there may be more than one proximate cause of an injury. It is "only where the intervening act is extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant's conduct, that it may possibly break the causal nexus" (Hain v Jamison, 28 NY3d at 529 [internal quotation marks, brackets, ellipses, and citations omitted]). "Proximate cause is, at its core, a uniquely fact-specific determination and depending upon the nature of the case, a variety of factors may be relevant in assessing legal cause" (id. at 530 [internal quotation marks, brackets, and citations omitted]). "Such factors include, among other things: the [*11]foreseeability of the event resulting in injury; the passage of time between the originally negligent act and the intervening act; the spatial gap, if any, between the original act and the intervening act; whether the original act of negligence was a completed occurrence or was ongoing at the time of the intervening act; whether and, if so, what other forces combined to bring about the harm; as well as public policy considerations regarding the scope of liability" (id.).

The egregiousness of the Hussain defendants' alleged actions, if proven, cannot be overstated. But given the facts alleged here about the Mavis defendants' actions, which must be taken as true for purposes of this motion, the Court cannot find that the Hussain defendants' intervening actions broke the chain of causation as a matter of law so as to eliminate any potential finding that Mavis's actions also proximately caused the fatal crash.

The Court acknowledges, as Mavis argues, that the alleged affirmative acts of negligence that occurred when Mavis serviced the Excursion in September 2016 — bending or crimping of the hydraulic hose in the rear brake system — are so attenuated in time such that subsequent events would ordinarily be found to break the chain of causation. Here, however, the allegations are that Mavis continued to service the Excursion during the two years before the crash, was aware of the still-defective brake system, including the bending or crimping of the hydraulic hose, and yet failed to repair the defects when it serviced the vehicle in April/May 2020, five months before the crash. But regardless of whether intervening acts have broken the chain of causation for the 2016 alleged acts of exacerbation, we have more here.

Of particular relevance are plaintiffs' allegations that Mavis, through acts of gross negligence, willfulness, or intentional collusion, enabled the Hussain defendants' continued operation of the Excursion as a passenger vehicle for hire without proper repairs and an authorized inspection. Plaintiffs allege that Mavis knew, or should have known from the nature of the Excursion and their knowledge of the nature of the Hussain defendants' business, that the Excursion required a rigorous NYS DOT inspection by an authorized inspection agent. Plaintiffs allege that Mavis placed the DMV inspection sticker on the Excursion despite having been informed by Nauman Hussain that the NYS DOT had stopped the Excursion for a roadside inspection two months earlier in March 2018 and cited it for safety violations. And they maintain, at the very least, it was foreseeable that their unauthorized act of affixing a DMV inspection sticker would allow the Hussain defendants' ostensible certificate of roadworthiness, so they could continue to operate the Excursion as a vehicle for hire in their business, regardless of whether it had passed or would have passed the NYS DOT inspection.

Finally, the fact that criminal charges are pending against Nauman Hussain does not automatically break the chain of causation. Aside from the fact that the pending charges have not yet been resolved, foreseeable criminal acts do not necessarily constitute superseding intervening acts that wholly break the chain of causation (see e.g. Turturro v City of New York, 28 NY3d 469, 484-485 [2016]; New York Cent. Mut. Fire Ins. Co. v City of Albany, 247 AD2d 815, 816-817 [3d Dept 1998]). Thus, even if Nauman Hussain were convicted, it would not be enough at this pre-answer motion stage to find as a matter of law that the Hussain defendants' actions were the sole proximate cause.

Given these allegations, taken as true and affording plaintiffs all reasonable inferences, the Court cannot find the Hussain defendants' actions in leasing the vehicle to plaintiffs' decedents, despite the NYS DOT's second out-of-service order in September or their knowledge of its unsafe condition, precludes a finding that the Mavis defendants' actions were a contributing [*12]cause of the fatal accident. Indeed, at this stage of the lawsuits, plaintiffs allege multiple tortfeasors — the Hussain defendants, the Mavis defendants, the driver Lisinicchia, Apple Barrel Country Store, and the State of New York.[FN8] It would be premature to cut off any factual findings regarding proximate cause at this early stage of the litigation.



Plaintiffs Have Sufficiently Alleged Facts to State a Claim for Punitive Damages

Mavis moves to dismiss all claims for punitive damages. Punitive damages may be awarded where a defendant's conduct is "grossly negligent, or wanton or so reckless as to amount to a conscious disregard of the rights of others" (Guariglia v Price Chopper Operating Co., Inc., 38 AD3d 1043, 1043 [3d Dept 2007], lv denied 9 NY3d 801 [2007] [internal quotation marks and citations omitted]; see Home Ins. Co. v American Home Prods. Corp., 75 NY2d 196, 201 [1990]). The purpose of punitive damages goes beyond simply punishing the perpetrator for the morally culpable act committed; punitive damages deter such grossly negligent or reckless conduct as a matter of public policy (see Home Ins. Co. v American Home Prods. Corp., 75 NY2d at 203; Guariglia v Price Chopper Operating Co., Inc., 38 AD3d at 1043).

Plaintiffs have alleged claims for willful and reckless conduct, even intentional conduct. Mavis's pre-answer motion to dismiss claims for punitive damages is therefore denied.



Mavis's Motion to Dismiss Co-Defendants' Cross Claims Is Denied.

Because the Court denies Mavis's motion to dismiss plaintiffs' claims, it denies Mavis's motion to dismiss the cross claims for contribution and indemnification asserted by the Hussain defendants and Apple Barrel Country Store (see Paro v Piedmont, 111 AD3d 1425, 1426-1427 [4th Dept 2013]). And, even if plaintiffs' direct claims against Mavis could not survive for lack of duty, the Court is not convinced that the claims brought by the other defendants — the Hussain defendants and Apple Barrel Country Store — could not proceed as third party claims (see Adler v Columbia Sav. & Loan Assn., 26 AD3d 349, 349-350 [2d Dept 2006]; cf. Murray v Golley, 132 AD3d 1391, 1392-1393 [4th Dept 2015]).

Accordingly, it is

Ordered that defendant Mavis's motion to dismiss the claims of negligence and gross negligence against them in these twelve coordinated actions for failure to state a claim, pursuant to CPLR 3211 (a) (7), is denied; and it is

Ordered that defendant Mavis's motion to dismiss the claims for punitive damages against them in these twelve coordinated actions for failure to state a claim, pursuant to CPLR 3211 (a) (7), is denied; and it is

Ordered that defendant Mavis's motion to dismiss the cross claims asserted against them by the Hussain defendants and Apple Barrel Restaurant in these twelve coordinated actions is denied.

This constitutes the decision and order of the Court, the original of which is being uploaded to NYSCEF for electronic entry by the Albany County Clerk. Upon such entry, liaison counsel for plaintiffs shall promptly serve notice of entry on all other parties entitled to such notice.



Dated: April 2, 2021

Albany, New York

Hon. Denise A. Hartman

Acting Justice of the Supreme Court

Papers Considered

1. Notice of Motion, dated November 18, 2020;

2. Affirmation of Benjamin Allee, Esq. in Support of Mavis Defendants' Motion, dated November 18, 2020, with Exhibits A-BB;

3. Memorandum of Law in Support of Mavis Defendants' Motion, dated November 18, 2020;

4. Affirmation of Thomas J. Mortati, Esq. in Opposition, dated January 20, 2021, with Exhibits A-B;

5. Plaintiffs' Memorandum of Law in Opposition, dated January 20, 2021;

6. Affidavit of Danielle N. Meyers, Esq., dated January 20, 2021;

7. Estates of Hough/Schnurr Supplemental Memorandum of Law, dated January 20, 2021;

8. Affirmation of Marc J. Kaim in Opposition, Esq., dated January 20, 2021;

9. Reply Memorandum of Law, dated February 5, 2021. Footnotes

Footnote 1:Mavis moves to dismiss 12 of the 13 complaints in these coordinated actions. The actions are being coordinated in Albany County for the purposes of pretrial discovery and pretrial motions pursuant to an order of the Litigation Coordination Panel, dated March 19, 2020. Mavis has not formally moved to dismiss the complaint in Estate of Ukaj v Hussain (Index No. EF20201306, Saratoga County), because it had not been served when Mavis filed the motion. Mavis acknowledges that the arguments presented in the motion apply equally to the Ukaj complaint.

Footnote 2:Counsel for the Estates of the Brian Hough and James Schnurr, and Jaclyn Schnurr, individually, filed Supplemental Opposition to Mavis's motion and asked to be permitted to amend their complaint if necessary. Mr. Hough and Mr. Schnurr were killed while they were standing in the parking lot of the Apple Barrel Country Store where the limousine crash occurred.

Footnote 3:Some of the plaintiffs also sued Apple Barrel Country Store and the Estate of Scott Lisinicchia, the driver of the Excursion. Both these defendants have also answered.

Footnote 4:Elsewhere, the NTSB included among its findings that Mavis Discount Tire "knowingly inspected and certified the crash limousine, which was clearly an altered vehicle, in contravention of the New York State Department of Motor Vehicles' policy that prohibited stations from inspecting modified or altered vehicles, including stretch limousines" (NTSB Report, Executive Summary, page x).

Footnote 5:Defendants submitted in support of their motion the NTSB report, apparently for informational purposes since Mavis does not seek dismissal under CPLR 3211 (1) based on documentary evidence. Although plaintiffs have not objected, the Court declines to consider the document in support of Mavis's motion. The Court can and will consider it, as well as the Affirmation of the Schoharie County District Attorney, with exhibits, submitted by plaintiffs, in opposition to Mavis's motion.

Footnote 6:Plaintiffs' allegations may also support a claim, at least with regard to the passenger-decedents, that the facts and circumstances of this case fall within the second Espinal exception where the injured parties detrimentally relied on the proper performance of the contracting party's duties.

Footnote 7:That the FMCSA regulations do not create an implied private right of action for damages (see Dippel v BestDrive, LLC, No. 3:19-cv-01135, 220 WL 813971, at *3, 2020 U.S. Dist. LEXIS 27853, at *8 [SD Ill. Feb. 19, 2020]) is beside the point. An intentional violation of federal safety standards may be relevant to whether plaintiffs state a claim under the Espinal exceptions where, as alleged here, the purpose of such standards is to protect the public at large (cf. Pasternack v Laboratory Corp. of Am. Holdings, 27 NY3d at 825-827).

Footnote 8:Plaintiffs have also filed parallel lawsuits against the State of New York in the Court of Claims.