Opinion
No. 161111/2013.
01-13-2015
Louella WYATT, Tyiesha Wyatt, Individually and as Mother and Natural Guardian of Shawn Wyatt, an Infant, Plaintiffs, v. CITY OF NEW YORK, New York City Transit Authority, Antonio C. Robinson, Metropolitan Transportation Authority, and MTA Bus Company, Defendants.
Law Office of Ryan S. Goldstein, PLLC, by Ryan S. Goldstein, Esq., Bronx, for Plaintiffs. New York City Transit Authority, Antonio C. Robinson, Metropolitan Transportation Authority, and MTA Bus Company: Armienti, DeBellis, Guglielmo & Rhoden LLP by Danielle L. Tabankin, Esq., New York, NY, for defendants.
Law Office of Ryan S. Goldstein, PLLC, by Ryan S. Goldstein, Esq., Bronx, for Plaintiffs.
New York City Transit Authority, Antonio C. Robinson, Metropolitan Transportation Authority, and MTA Bus Company: Armienti, DeBellis, Guglielmo & Rhoden LLP by Danielle L. Tabankin, Esq., New York, NY, for defendants.
Opinion
MICHAEL D. STALLMAN, J.
In this action involving a motor vehicle accident, plaintiffs alleges that, on January 14, 2013, a bus bearing license plate M13688 rear-ended their vehicle on East 116th Street between Park Avenue and Madison Avenue in Manhattan. It is undisputed that plaintiffs Louella Wyatt and Shawn Wyatt were passengers in the vehicle, that the vehicle was owned by Louella Wyatt and operated by non-party Rafael Price. Defendant Antonio C. Robinson allegedly operated the bus.
Plaintiffs now move for summary judgment in their favor as to liability against the New York City Transit Authority (N.Y.CTA), Robinson, the Metropolitan Transportation Authority (MTA), and MTA Bus Company, and for summary judgment dismissing their counterclaim against Louella Wyatt. The NYCTA, Robinson, MTA, and MTA Bus Company oppose the motion and cross-move for summary judgment dismissing the action. Plaintiffs oppose the cross motion.
BACKGROUND
According to a police accident report, operator of Vehicle 1, the bus driver, was “Robinson, Antonio, C”, and the registered owner of the bus was “MTA Bus Company” at “341 Madison Avenue, New York, N.Y. 10017.” (Tabankin Affirm., Ex G.) The police accident report states, in pertinent part, “At T/P/O, oper. veh No.1 sts he was traveling W/B on E116 St, Park to Madison Ave on left lane—when veh # 2 stopped short-causing veh # 1 to rear end veh # 2.... Officer did not witness accident.” (Id. )
On May 3, 2013, plaintiffs allegedly served a notice of claim upon the Metropolitan Transportation Authority (MTA) at “341 Madison Avenue, New York, N.Y. 10017.” The notice of claim, which is addressed to the MTA, City of New York, and New York City Transit Authority (N.Y.CTA) states, in relevant part,
“At approximately 4:30 PM on April 13, 2013, claimants, LOUELLA WYATT and SHAWN WYATT, were a [sic ] seat belted passengers in the vehicle owned by LOUELLA WYATT and operated by RAFAEL PRICE a 2004 Toyota motor vehicle. At all times relevant, Ms. Wyatt's vehicle was traveling on Westbound East 116th Street intersecting Park Avenue and Madison Avenue.... While Ms. Wyatt's vehicle was stopped for traffic, her vehicle hit from the rear by a 2007 MCI with license plate M13688 registered in the State of New York, being operated by a Metropolitan Bus Company Employee, Antonio C. Robinson, in the course of his employment, and owned by the METROPOLITAN TRANSPORTATION AUTHORITY, CITY OF NEW YORK, NEW YORK, and NEW YORK CITY TRANSIT AUTHORITY. ”
(Tabankin Affirm., Ex F.)
On December 2, 2013, plaintiffs commenced this action against the City of New York, NYCTA, Robinson, and the MTA. (Goldstein Affirm., Ex B.) The complaint alleges that Robinson was an employee of the MTA.
Based on date-time stamps on a copy of the pleadings, the City of New York, NYCTA, and MTA were apparently served with the pleadings on December 5, 2013. (See Tabankin Affirm., Ex A.) According to an affidavit of service efiled on December 26, 2013, defendant Robinson was purportedly served with the summons and complaint on December 17, 2013, by substituted service upon a “Jane Doe” at “280 Fort Washington Avenue, Apt 45, New York, N.Y. 10032”, followed by a mailing by first class mail to that address on December 18, 2013. (Tabankin Affirm., Ex J.)
The City apparently served an answer dated December 20, 2013. On March 9, 2014, the City moved for summary judgment dismissing the complaint as against it, which was granted by decision and order dated April 14, 2014.
While the City's motion for summary judgment was pending, plaintiffs served a summons and amended complaint adding MTA Bus Company as a defendant on March 25, 2014. (Goldstein Affirm., Ex C [amended complaint].) The amended complaint alleges that Robinson “is an employee of Defendant, MTA, as well as MTA Bus”. (Id. ¶ 8.) On April 2, 2014, the NYCTA, MTA, and Robinson apparently served an answer dated March 28, 2014 to the original complaint. (Tabankin Affirm., Ex C.)
According to an affidavit of service efiled on May 2, 2014, defendant Robinson was purportedly served with the summons and amended verified complaint on April 12, 2014, by substituted service upon a “Jane Doe” at “280 Fort Washington Avenue, Apt 45, New York, N.Y. 10032”, followed by a mailing by first class mail to that address on April 15, 2014. (Tabankin Affirm., Ex J.) The NYCTA, MTA, Robison, and MTA Bus Company apparently answered the amended complaint and efiled the amended answer on May 28, 2014. (Tabankin Affirm., Ex E.) The amended answer asserts a counterclaim against Louella Wyatt for comparative fault.
A preliminary conference has not yet been held in this action, due to the City's summary judgment motion and the instant motion and cross motion.
I.
As a threshold matter, the Court accepts the reply affirmation of Danielle L. Tabankin, Esq. dated September 30, 2014 in support of defendants' cross motion, and the accompanying exhibits. Tabankin had requested a two-week adjournment of the return date of the motion and cross motion, scheduled September 17, 2014 to file a reply affirmation in support of the cross motion. (N.Y.SCEF Doc # 54.) However, it does not appear from court records that the Motion Submissions Part considered or denied the application, and the motion and cross motion were marked fully submitted on September 17, 2014. Tabankin efiled the reply affirmation and accompanying exhibits on September 30, 2014. Given that there was no written opposition to Tabankin's application for an adjournment, and there appears to be no ruling on the application, the Court accepts Tabankin's reply affirmation and the accompanying exhibits.
II.
The NYCTA, Robinson, MTA, and MTA Bus Company argue that the action should be dismissed as to the NYCTA and MTA because the MTA Bus Company is the registered owner of the bus at issue, and that Robinson is an employee of the MTA Bus Company.
As to Robinson and the MTA Bus Company, they contend that the amended complaint adding the MTA Bus Company was a ity because plaintiffs should have obtained leave to amend from the Court, and that Robinson was never served with the pleadings. Alternatively, they argue that plaintiffs did not serve a pre-suit demand upon the MTA Bus Company, which they assert is a condition precedent to suit against the MTA Bus Company and Robinson.
A.
In support of their contention that the MTA Bus Company is the registered owner of the bus at issue and that Robinson is an employee of the MTA Bus Company, they submit from an affidavit from Donnie Osbourne, an analyst employed by the MTA Bus Company, and an affidavit from Robinson. (Tabankin Affirm., Exs H [Osbourne Aff.] and I [Robinson Aff].)
Osbourne states that the bus that Robinson was operating on April 13, 2013 was owned and maintained by the MTA Bus Company. (Osbourne Aff. ¶ 5.) Annexed to Osbourne's affidavit is a copy of the bus registration with the New York State Department of Motor Vehicles, which indicates the registrant of the vehicle bearing plate M13688 is “MTA; Bus; Company.” (Id. ) The address listed on the vehicle registration is “341 Madison Ave” “New York, NY” (Id. )
Robinson avers that, on April 13, 2013, he was employed as a bus operator for the Eastchester Depot of the MTA Bus Company, and that he was not an employee of the NYCTA or MTA. (Robinson Aff. ¶¶ 2–3.)
Plaintiffs do not oppose dismissal as against the NYCTA and stipulate to the dismissal. (Goldstein Reply Affirm. ¶¶ 4–5.) However, plaintiffs contend that there are triable issues of fact as to whether the MTA owns the bus, and whether Robinson is a MTA employee. Plaintiffs assert that, the MTA Bus Company denied the amended complaint's allegations that it owned the bus and that Robinson was its employee. They also claim that, on his Facebook page, Robinson listed his past employment as “Metropolitan Transportation Authority (MTA).” (Goldstein Affirm., Ex H.)
Plaintiffs fail to raise a triable issue of fact as to whether the MTA owns the bus, or whether Robinson was a MTA employee. “It is well settled, as a matter of law, that the functions of the MTA with respect to public transportation are limited to financing and planning, and do not include the operation, maintenance, and control of any facility.” (Delacruz v. Metropolitan Transp. Auth., 45 AD3d 482, 483 [1st Dept 2007] ; Towbin v. City of New York, 309 A.D.2d 505, 505, 765 N.Y.S.2d 242 [1st Dept 2003] [“the action must be dismissed against defendant Metropolitan Transportation Authority for the additional reason that it neither owns nor operates any buses”].)
The MTA's and MTA Bus Company's denials of the allegations of the amended complaint do not compel a contrary result. The amended complaint alleges that Robinson “is an employee of Defendant, MTA, as well as MTA Bus ...” (Goldstein Affirm., Ex C [amended complaint] ¶ 8). Given that the single sentence contained multiple allegations, the NYCTA, MTA, Robinson, and MTA Bus Company were permitted to deny the entire sentence, “even if the sentence contains some facts that defendant does not dispute.” (Barr, Altman, Lipshie, & Gerstman, New York Civil Practice Before Trial § 15:551 [2011].) The denial of the allegation that “Defendant, MTA Bus, was the registered owner of a certain 2007 bus bearing license number M13688 register in the State of New York” was a denial “in the form alleged”, which is not a permissible form of denial. (See Patrick M. Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3018:1.) Whether such a denial should be construed as an admission against the MTA Bus Company and Robinson is not an issue before this Court. In any event, it does not, as plaintiffs appear to argue, constitute an admission that the MTA owned the bus at issue, thereby warranting denial of summary judgment. Neither would these denials bar the MTA on this cross motion from offering any evidence to disprove that the MTA was not the owner of the bus at issue, or that Robinson was not an MTA employee. (Stevens v. Northern Lights Assoc., 229 A.D.2d 1001 [4th Dept 1996] ; accord Palmier v. United States Fid. & Guar. Co., 135 A.D.2d 1057 [3rd Dept 1987].)
Therefore, the branch of the NYCTA, MTA, Robinson, and MTA Bus Company's cross motion for summary judgment dismissing the action as against the NYCTA and MTA is granted.
B.
The NYCTA, MTA, Robinson and MTA Bus Company argue that plaintiffs should have obtained leave to amend before serving the amended complaint adding the MTA Bus Company as a defendant. Consequently, they assert that the amended complaint is a ity. Plaintiffs counter that they were entitled to amend the complaint as of right because they amended their complaint before the NYCTA, MTA, and Robinson answered the original complaint.
CPLR 1003 states, in relevant part,
“Parties may be added at any stage of the action ... once without leave of court within twenty days after service of the original summons or at anytime before the period for responding to that summons expires or within twenty days after service of a pleading responding to it.”
“In terms of procedural mechanics, CPLR 1003 must be read in conjunction with the last sentence of CPLR 305(a) (supplemental summons) and CPLR 3025(a) -(b) (amendment of pleadings).” (Vincent C. Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C1003:2.) “[T]he time periods allowed for the CPLR 3025(a) amendment are adopted as the time periods within which the additional joinder can be accomplished unilaterally under the statutes.” (Patrick M. Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 3025:3A.) In multiparty litigation, the pleader may amend as of right “within 20 days after service of the last pleading responding to his pleading.” (Citibank v. Suthers, 68 A.D.2d 790, 794–95 [4th Dept 1979] [interpreting CPLR 3025(a) ].)
Here, on the record presented to the Court, plaintiffs did not amend the complaint during any of the permissible periods for amendment as of right under CPLR 1003.
1.
It is undisputed that plaintiffs did not serve the amended complaint within 20 days after service of the original summons. The amended complaint was served on March 25, 2014, more than three months after the summons was served upon the City, NYCTA, and MTA, and purportedly served upon Robinson.
2.
It does not appear that plaintiffs amended the complaint before the period for NYCTA, MTA, and Robinson to respond to the original summons had expired. Generally speaking, an answer must be served within 20 days after service of the complaint. (CPLR 3012[d].) The complaint was apparently served on the NYCTA and MTA on December 5, 2013. However, because 20 days after December 5, 2013 fell on Christmas day, a public holiday (General Construction Law § 24 ), the NYCTA's and MTA's time to answer the complaint was extended to Thursday, December 26, 2013. (General Construction Law § 25–a.)
Meanwhile, Robinson was purportedly served with the original summons and complaint by substituted service on December 17, 2013, and the affidavit of service upon Robinson was efiled on December 26, 2013. Therefore, service upon Robinson was purportedly complete ten days after the filing of the affidavit of service, i.e., January 5, 2014. (CPLR 308[2].) Because Robinson was purportedly served by substituted service, Robinson had 30 days after completion of the substituted service, i.e., February 4, 2014, to answer the complaint.
Plaintiffs do not submit any evidence of an agreement with the NYCTA, MTA, and Robinson that extended their time to answer the complaint. In the absence of such an extension, it does not appear that plaintiffs amended the complaint before the period for NYCTA, MTA, and Robinson to respond to the original summons had expired.
3.
The NYCTA, MTA and Robinson apparently answered the complaint on April 2, 2014. (Tabankin Affirm., Ex C.) Plaintiffs did not amend the complaint within 20 days after their answer was served, but rather before their answer was served.
Thus, plaintiffs did not serve an amended complaint during a period which amendment as of right was permitted.
4.
Plaintiffs' failure to obtain leave of Court or the consent of all parties to add the MTA Bus Company as a defendant “rendered the supplemental summons and amended complaint a legal ity.” (Yadegar v. International Food Mkt., 306 A.D.2d 526 [2d Dept 2003] ; Perez v. Paramount Communications, 92 N.Y.2d 749, 753 [1999].) “[N]evertheless, a failure to obtain leave of the court may be waived and is not fatal in all cases.” (Santopolo v. Turner Const. Co., 181 A.D.2d 429, 429 [1st Dept 1992].)
Here, the NYCTA, MTA, Robinson, and MTA Bus Company apparently answered the amended complaint and efiled the amended answer on May 28, 2014. (Tabankin Affirm., Ex E.). There is no indication in the record that they rejected the amended complaint as improper. The amended answer, which asserts 13 affirmative defenses, did not assert the defense of lack of jurisdiction over the MTA Bus Company or improper joinder due to the improperly amended complaint, or that the amended complaint was a ity. The instant cross motion for summary judgment dismissing the action as against the MTA Bus Company on the ground of improper joinder was not made until August 27, 2014, almost three months after the NYCTA, MTA, Robinson, and MTA Bus Company answered the amended complaint.
The fifth affirmative defense of the amended verified answer asserts lack of personal jurisdiction, but on the ground that “plaintiffs have failed to properly serve defendants with the Summons in this matter.” (Tanbankin Affirm., Ex E.)
The NYCTA, MTA, Robinson and the MTA Bus Company therefore waived any right to dispute the propriety of the amended complaint “by retaining the amended pleading without objection.” (Jordan v. Altagracia Aviles, 289 A.D.2d 532, 533 [2d Dept 2001] ; Moran v. Hurst, 32 AD3d 909 [2d Dept 2006] [“by retaining the amended pleading without objection and even interposing an answer thereto, which did not assert an affirmative defense based on lack of jurisdiction, Berger, SFB & F, and Hurst waived any right to dispute its propriety”]; Tarallo v. Gottesman, 204 A.D.2d 303 [2d Dept 1994] [appellants waived defect of improper joinder because the appellants answered the “amended” complaint served on them, and engaged in discovery for approximately six months until, after the Statute of Limitations had run, they moved for summary judgment on the ground of improper joinder”].)
Therefore, the branch of the NYCTA, MTA, Robinson, and MTA Bus Company's cross motion to dismiss the action as against MTA Bus Company on the ground that plaintiffs did not properly amend their complaint as of right to add MTA Bus Company as a party pursuant to CPLR 1003 is denied.
C.
Robinson claims that he was never served with the pleadings. The affidavit of service of the summons and complaint indicates that Robinson was purportedly served on December 17, 2013, by substituted service upon a “Jane Doe” at “280 Fort Washington Avenue, Apt 45, New York, N.Y. 10032”, followed by a mailing by first class mail to that address on December 18, 2013. (Tabankin Affirm., Ex J.) “Jane Doe” is described as a female, with black skin, black hair, and 31 years old, with a height between 5 feet 4 inches and 5 feet 8 inches, and a weight between 131–160 pounds. (Id. )
According to an affidavit of service efiled on May 2, 2014, Robinson was purportedly served with the summons and amended verified complaint on April 12, 2014, by substituted service upon a “Jane Doe” at “280 Fort Washington Avenue, Apt 45, New York, N.Y. 10032”, followed by a mailing by first class mail to that address on April 15, 2014. “Jane Doe” is again described as a female, with black skin, black hair, and 32 years old, with a height between 5 feet 4 inches and 5 feet 8 inches, and a weight between 131–160 pounds. (Tabankin Affirm., Ex J.) Robinson states that 280 Fort Washington Ave Apt 45 is his address, but states that no woman resides with him who fits the description of “Jane Doe.” (Tabankin Affirm., Ex I [Robinson Aff.] ¶¶ 14–16.) Robinson therefore argues that a traverse hearing is required.
However, plaintiffs correctly indicate that Robinson waived the objection of improper service, because he did not move for dismissal on that ground within 60 days of raising the defense in his amended answer. (CPLR 3211[e].) The NYCTA, MTA, Robison, and MTA Bus Company apparently answered the amended complaint on May 28, 2014. The instant cross motion was made on August 27, 2014, ninety-one days later. Robinson does not allege any undue hardship that prevented a timely motion to dismiss on the ground of improper service, which would warrant an extension. (CPLR 3211[e] ; Reyes v.. Albertson, 62 AD3d 855 [2d Dept 2009].)
Robinson's reliance on CPLR 2004 for an extension for good cause is misplaced. (See Abitol v. Schiff, 180 Misc.2d 949 [Sup Ct, Queens County 2000], mod on other grounds 276 A.D.2d 571 [2nd Dept 2000].) “[T]he only way the defendant could have avoided the 60—day time limit was by a showing of undue hardship” (CPLR 3211[e] ), which is not present here.” (Thompson v. Cuadrado, 277 A.D.2d 151, 152 [1st Dept 2000] [citing Abitol ].)
Therefore, the branch of the NYCTA, MTA, Robinson, and MTA Bus Company's cross motion to dismiss the action as against Robinson due to improper service of process is denied.
D.
For the first time in their reply, the NYCTA, MTA, Robinson, and MTA Bus Company contend that “[s]ervice of that amended complaint was never properly effectuated on MTA BUS COMPANY.” (Tabankin Reply Affirm. ¶ 15.) However, this argument is improperly raised for the first time in reply. (Ritt v. Lenox Hill Hosp., 182 A.D.2d 560 [1st Dept 1992].) In any event, the MTA Bus Company waived any objection to improper service of process of the amended complaint because, like Robinson, the MTA Bus Company did not move for dismissal on that ground within 60 days of raising the defense in the amended answer. (CPLR 3211[e].)
E.
Public Authorities Law § 1276(1) states,
“As a condition to the consent of the state to such suits against the authority [Metropolitan Transportation Authority], in every action against the authority for damages, for injuries to real or personal property or for the destruction thereof, or for personal injuries or death, the complaint shall contain an allegation that at least thirty days have elapsed since the demand, claim or claims upon which such action is founded were presented to a member of the authority or other officer designated for such purpose and that the authority has neglected or refused to make an adjustment or payment thereof.”
Public Authorities Law § 1276(1) applies to subsidiaries of the Metropolitan Transportation Authority (Public Authorities Law § 1276[6] ), and the MTA Bus Company is a subsidiary of the Metropolitan Transportation Authority. (See Rampersaud v. Metropolitan Transp. Auth. of the State of NY, 73 AD3d 888 [2d Dept 2010].) Thus, as applied to the MTA Bus Company, Public Authorities Law § 1276(1) requires that, in every action against the MTA Bus Company for personal injuries, the complaint must allege that a pre-suit demand was made upon the MTA Bus Company at least 30 days prior to commencement of suit against the MTA Bus Company, and that the MTA Bus Company “neglected or refused to make an adjustment or payment thereof.” (See Andersen v. Long Is. R.R., 59 N.Y.2d 657 [1983].) Compliance with Public Authorities Law § 1276(1) is a condition precedent to suit against the MTA Bus Company. (See Fleming v. Long Is. R.R., 72 N.Y.2d 998, 999 [1988].)
Here, plaintiffs argue that service of the notice of claim upon the MTA satisfied the requirement of a pre-suit demand upon MTA Bus Company. Plaintiffs contend that any mistake should be excused because the address listed on the DMV registration of the bus is 341 Madison Avenue. MTA, NYCTA, Robinson and MTA Bus Company contend that service of the pre-suit demand should have been made at the principal place of business of the MTA Bus Company, 2 Broadway, New York, New York, which is the only address where the MTA Bus Company accepts service of process. (Tabankin Reply Affirm., Ex A [Polese Aff.] ¶ 4.)
There is no appellate authority as to whether service of a pre-suit demand on the MTA Bus Company must be made only at the address where it accepts service of process, i.e., at its principal place of business. The Court need not reach the question of whether a notice of claim delivered to an address listed on a vehicle registration for the MTA Bus Company would constitute a valid pre-suit demand upon the MTA Bus Company. The notice of claim was clearly addressed to, intended for, and received by, the MTA. Under the circumstances, service of the notice of claim upon the MTA here therefore does not constitute a valid pre-suit demand upon the MTA Bus Company.
Service of a pre-suit demand upon the MTA Bus Company is not required as a condition precedent to suit against Robinson, an employee of the MTA Bus Company. A comparison between Public Authorities Law § 1276 with Public Authorities Law § 1212, which applies to the NYCTA, is instructive. Public Authorities Law § 1212(4) requires the allegation that a notice of claim be served upon the NYCTA at least 30 days prior to suit in any action against “the authority or against such officer or employee on account of such negligence ...” (emphasis supplied.) The Legislature did not include similar language in Public Authorities Law § 1276, which suggests that the pre-suit demand should not be read to include actions against employees. Indeed, the Appellate Division, First Department very recently ruled, “there is no statutory or legal authority requiring service of a demand on an employee of a subsidiary of the MTA.” (Wolfson v. Metropolitan Transp. Auth., –––AD3d ––––, 2014 WL 7372743 [1st Dept 2014] ).
Therefore, the branch of the NYCTA, MTA, Robinson, and MTA Bus Company's cross motion for summary judgment dismissing the action as against MTA Bus Company and Robinson due to non-compliance with Public Authorities Law § 1276(1) is granted only as to MTA Bus Company, and is otherwise denied.
As a result of the analysis above, the only remaining defendant in this action is Robinson.
Although the MTA Bus Company must be dismissed as a named defendant from this action, the Court notes that Public Authorities Law § 1276(3), which applies to the MTA Bus Company, states,
“The authority shall be liable, and shall assume the liability to the extent that it shall save harmless any duly appointed officer or employee of the authority, for the negligence of such officer or employee, in the operation of a vehicle or other facility of transportation owned or otherwise under the jurisdiction and control of the authority in the discharge of a duty imposed upon such officer or employee at the time of the accident, injury or damages complained of, while otherwise acting in the performance of his duties and within the scope of his employment.”
It appears that the MTA Bus Company has already assumed Robinson's defense, insofar as Robinson and MTA Bus Company are represented by the same counsel.
III.
Turning to plaintiffs' motion, plaintiffs argue that they are entitled to summary judgment as to liability in their favor and dismissal of the counterclaim against plaintiff Louella Wyatt for comparative fault because the bus rear-ended their vehicle.
Although it is undisputed that plaintiff Louella Wyatt was a passenger in the vehicle operated by non-party Rafael Price, the NYCTA, MTA, Robinson and MTA Bus Company contend that, as the alleged owner of the vehicle, plaintiff Louella Wyatt is vicariously liable for Price's actions under Vehicle and Traffic Law § 388.
In support of their motion, plaintiffs submit an affidavit from Louella Wyatt, a copy of the police report, and copies of the pleadings. Louella Wyatt states, “The vehicle I was a lawful passenger in was traveling Westbound on East 116th Street when our vehicle was rear ended by the motor vehicle being owned by Defendant, METROPOLITAN TRANSPORTATION AUTHORITY and operated by Defendant, ANTONIO C. ROBINSON who was traveling in the same compass direction on East 116th Street ...” (Goldstein Affirm., Ex A [Louella Wyatt Aff]. ¶ 5.)
According to Robinson,
“As I was traveling through the intersection of East 116th Street and Park Avenue, the MTA bus was in the left lane. The MTA bus was in the left lane because there were double parked vehicles ahead of me blocking the right lane. A vehicle traveling in front of me made a left turn onto Park Avenue from 116th Street, causing me to bring the MTA Bus to a complete stop.
Once the vehicle in front of me made the left turn, I slowly proceeded through the intersection of East 116th Street and Park Avenue. After crossing the intersection, I continued forward still in the left lane.
Suddenly and without warning, a Toyota Sienna van operated by Rafael Price traveling in the same direction sped up on my right side and cut the MTA bus off by switching lanes from right to left directly in front of the MTA bus.
While it was in the process of switching lanes, the Toyota Sienna van operated by Rafael Price then abruptly stopped in front of the MTA bus for no apparent reason, causing the front right side bumper of the MTA bus to make contact with the left rear bumper of the Toyota Sienna van.”
(Robinson Aff. ¶¶ 6–9.)
Summary judgment against Robinson is denied. The differing accounts raise triable issues of fact as to whether Robinson's bus rear-ended plaintiffs' vehicle, thereby triggering the presumption of negligence, or whether the bus made contact with plaintiffs' vehicle when non-party Rafael Price made an unsafe lane change. (See Vehicle and Traffic Law § 1128[a]. ) Given that Price has not been deposed and has not submitted an affidavit on this motion and cross motion, summary judgment in plaintiffs' favor against Robinson is premature.
Vehicle and Traffic Law § 1128(a) states, “A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.”
CONLCUSION
Accordingly, it is hereby
ORDERED that plaintiffs' motion for summary judgment is denied; and it is further
ORDERED that the cross motion for summary judgment by defendants New York City Transit Authority, Robinson, the Metropolitan Transportation Authority, and MTA Bus Company, is granted in part, and the amended complaint is dismissed as against defendants New York City Transit Authority, Metropolitan Transportation Authority, and the MTA Bus Company, and the Clerk is directed to enter judgment in favor of these defendants, together with costs and disbursements to these defendants, as taxed by the Clerk upon presentation of a bill of costs, and the cross motion is otherwise denied; and it is further
ORDERED that the action is severed and continued as against the remaining defendant, Antonio C. Robinson.