Tejada v Manhattan & Bronx Surface Tr. Operating Auth. (MABSTOA)
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Tejada v Manhattan & Bronx Surface Tr. Operating Auth. (MABSTOA) 2023 NY Slip Op 33097(U) August 30, 2023 Supreme Court, New York County Docket Number: Index No. 152128/2020 Judge: Denise M. Dominguez 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. INDEX NO. 152128/2020 FILED: NEW YORK COUNTY CLERK 09/07/2023 03:46 PM NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 09/07/2023 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: 21 PART HON. DENISE M DOMINGUEZ Justice ---------------------------------------------------------·----------------X 152128/2020 INDEX NO. EDUARDO TEJADA, MOTION SEQ. NO. 001 ------'--"--- Plaintiff, - V - MANHATTAN AND BRONX SURFACE TRANSIT OPERATING AUTHORITY (MABSTOA), NEW YORK CITY TRANSIT AUTHORITY (NYCTA), MTA BUS COMPANY (MBC), METROPOLITAN TRANSPORTATION AUTHORITY (MTA), SHARIFFE SAMUELS, CENTURY WASTE SERVICES LLC, CHARLES KING DECISION+ ORDER ON MOTION Defendants. ---------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53 JUDGMENT - SUMMARY were read on this motion to/for For the reasons that follow, the Plaintiffs motion for summary judgment pursuant to CPLR §3212 against all of the Defendants is denied. This personal injury matter arises out of an August 30, 2019 3:40 a.m. three-vehicle motor vehicle collision on Broadway hear West 92nd Street in Manhattan involving a bus, owned by Defendants MANHATTAN AND BRONX SURFACE TRANSIT OPERATING AUTHORITY, NEW YORK CITY TRANSIT AUTHORITY, MTA BUS COMPANY, METROPOLITAN TRANSPORTATION AUTHORITY and operated by Defendant SHARIFFE SAMUELS ("TRANSIT"), a garbage truck owned by Defendant CENTURY WASTE SERVICES LLC and operated by Defendant CHARLES KING ("CENTURY") and a vehicle operated by the Plaintiff, EDUARDO TEJADA. (NYSCEF Doc. 29). The Plaintiff alleges TRANSIT and CENTURY were the sole cause of the accident. The Plaintiff now moves pre note of issue for summary judgment alleging that TRANSIT was negligent per se because the bus was double parked for 30 minutes and that CENTURY was . negligent per se because it made a sharp right turn into the Plaintiffs lane of traffic causing the Plaintiff to swerve and come into contact with the bus. The Defendants oppose alleging that the 152128/2020 TEJADA, EDUARDO vs. MANHATTAN AND BRONX SURFACE Motion No. 001 [* 1] 1 of 4 Page 1 of 4 FILED: NEW YORK COUNTY CLERK 09/07/2023 03:46 PM NYSCEF DOC. NO. 62 INDEX NO. 152128/2020 RECEIVED NYSCEF: 09/07/2023 Plaintiffs reckless driving in attempting to drive between the garbage truck while it was in the process of_a necessary wide turn and the double-parked bus which was running replacement shuttle service for the 1 subway line. CPLR §3212 provides any party in any action, including in a negligence action, to move for summary judgment. (CPLR §3212 [a], Andre v. Pomeroy, 35 N.Y.2d 361, 320 N.E.2d 853 [1974]). The party seeking summary judgment, even if unopposed, has the high burden of establishing entitlement to judgment as a matter _of law with evidence in admissible form (see CPLR §3212 [b], Voss·v Netherlands Ins. Co., 22 N.Y.3d 728, 734, 8 N.E.3d 823 [2014], Giuffrida vCitibankCorp., 100N.Y.2d 72, 81, 790N.E.2d 772 [2003],AlvarezvProspectHosp., 68N.Y.2d 320, 324-25, 501 N.E.2d 572, 574 [1986], see_ also Zuckerman v City ofNew York, 49 NY2d 557 [1980]). "Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to estabiish the existence of°material issues of fact which require a trial of the action". (Alvarez v Prospect Hosp., 68 N.Y.2d 320,324,501 N.E.2d 572,574 [1986]). Upon review, the Plaintiff has not established his right to judgment as a matter of law as ·there remain triable issues of fact concerning how ·this accident occurred, the Defendants' respective negligence, as well as the Plaintiffs comparative negligence, which precludes judgment as a matter of law. Issues of fact exist as _to how the collision happened as the Plaintiff and Defendants' version of the accident is disputed. The Plaintiff claims that the garbage truck "cut off' the Plaintiffs vehicle. However, CENTURY maintains that the garbage truck began its necessary wide turn well in advance of the intersection by utilizing its right turning signal and did not "cut off' the Plaintiff. Rather, CENTURY asserts that KING checked to make sure there was clearance to safely make the turn before beginning its turn, but the Plaintiff drove recklessly and attempted to squeeze between the garbage truck and the ·stopped bus (NYSCEF Doc. 33, 47). A review of the bus' surveillance video (NYSCEF Doc. 48, 49, 50), as well as the photos mai:ked at Defendant KING's deposition (NYSCEF Doc. 46) raise a material question of fact as to how this accident occurred and what the proximate cause of the accident may have been. It has long been held that " ... issues · of proximate cause are fact questions to be decided by a jury. While it is appropriate to decide the question of legal cause as a matter of law 'where only one conclusion may be drawn from the established facts', where there is any doubt, confusion, or difficulty in deciding whether the issue 152128/2020 TEJADA, EDUARDO vs. MANHATTAN AND BRONX SURFACE Motion No. 001 [* 2] 2 of 4 Page2 of4 FILED: NEW YORK COUNTY CLERK 09/07/2023 03:46 PM NYSCEF DOC. NO. 62 INDEX NO. 152128/2020 RECEIVED NYSCEF: 09/07/2023 ought to be decided as a matter of law, the better course is to leave the point for the jury to decide." (White v. Diaz, 49 A.D.3d 134, 139, 854 N.Y.S.2d 106 [Pt Dept 2008] quoting Derdiarian v. Felix Contracting Corp., 51 N.Y.2d 308,315,414 N.E.2d 666 [1980]). Moreover, the Plaintiff's argument that TRANSIT is negligent per se due to the fact that the bus was stopped/double parked in a moving lane is not availing. "The fact that a vehicle is double parked 'does not automatically establish that such double parking was the proximate cause of the accident'." (Cervera v. Moran, 122 A.D.3d 482, 483, 997 N.Y.S.2d 39, 39 [Pt Dept 2014] quoting DeAngelis v. Kirschner, 171 A.D.2d 593,595,567 N.Y.S.2d 457 [1st Dept. 1991]). Thus, the position of the bus parked/stopped on its own does not establish negligence per se as Courts have routinely found that where vehicle's double-parked position may simply furnish "... the condition or occasion for the occurrence of the event" without being the proximate cause of the event. (Cervera 122 A.D.3d at 483, supra; see DeAngelis 171 A.D.2d at 595). The evaluation of the role a double-parked vehicle may have in contributing to an accident is a case/factually specific analysis. (see Barry v. Pepsi-Cola Bottling Co. of New York, 130 A.D.3d 500, 11 N.Y.S.3d 857, [1st Dept 2015]). Here, the bus was stopped for several minutes prior to the accident with its. caution lights engaged (seen on the video) and there were two moving lanes of traffic to the left of the bus that were unobstructed permitting the minimal traffic at that time of the day to easily pass (also seen on the video). Thus, it cannot be said as a matter oflaw that the double-parked bus was a proximate cause of the subject accident. Accordingly, it is hereby ORDERED that the Plaintiff's motion for summary judgment against the Defendants is denied; and it is further ORDERED that the Plaintiff shall serve a copy of this order with notice of entry upon the Clerk of the Court (60 Centre Street, Room 141B) and the Clerk of the General Clerk's Office (60 Centre Street, Room 119); and it is further ORDERED that such service upon the Clerk of the Court and the Clerk of the General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on 152128/2020 TEJADA, EDUARDO Motion No. 001 [* 3] vs. MANHATTAN AND BRONX SURFACE 3 of 4 Page 3 of 4 INDEX NO. 152128/2020 FILED: NEW YORK COUNTY CLERK 09/07/2023 03:46 PM NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 09/07/2023 Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "EFiling" page on the court's website). Any requested relief not expressly addressed herein has nonetheless been considered by the Court and is hereby expressly denied. 8/30/2023 DATE CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: ~ CASE DISPOSED GRANTED . ~ DENIED JS.,C. ~ NON-FINAL DISPOSITION . GRANTED IN PART SETTLE ORDER SUBMIT ORDER INCLUDES TRANSFER/REASSIGN . FIDUCIARY APPOINTMENT 152128/2020 TEJADA, EDUARDO. vs. MANHATTAN AND BRONX SURFACE Motion No. 001 [* 4] 4 of 4 OTHER Page4 of4
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