| Pichardo v Fernandez |
| 2014 NY Slip Op 50425(U) [42 Misc 3d 1237(A)] |
| Decided on March 18, 2014 |
| Supreme Court, New York County |
| Stallman, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Virgilio
Pichardo, Plaintiff,
against Nilson Fernandez, TORDEM EQUIPMENT CORP., SAID ELJAMAL, and NEW YORK CITY TRANSIT AUTHORITY, Defendants. |
[*2]Decision and Order
In this action, plaintiff alleges that, on April 28, 2010, he was a passenger aboard a M3 bus, bearing license plate number M49316, operated by defendant Said Eljamal and owned by defendant New York City Transit Authority (NYCTA). According to plaintiff, the bus was struck in the rear by a flatbed truck, bearing a New York State license plate number 87777JX, operated by defendant Nilson Fernandez and owned by defendant Tordem Equipment Corp. The motor vehicle collision allegedly occurred near the southeast intersection of West 110th Street and the roundabout of Eighth Avenue in Manhattan.
Plaintiff testified at his deposition that he was seated on the bus, toward the back of the bus, "like three seats before the back of the bus in the back of the bus." (Spivak Affirm., Ex F [Pichardo EBT, at 37-38.] Plaintiff stated that the bus did not have seat belts. (Id. at 37.) Plaintiff testified that the impact occurred when the bus was stopped "at an angle" at the bus stop. (Id. at 47.) According to plaintiff, he felt the impact "from the back", and that he was seated when the impact occurred. (Id. at 60-61.)
Plaintiff now moves for summary judgment dismissing defendants' affirmative
defenses of comparative negligence. Eljamal and the NYCTA cross-move for summary
judgment dismissing the action and all cross claims as against them, on the ground that
the bus was stopped and rear-ended by Fernandez's vehicle.
The standards for summary judgment are well-settled.
"On a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party. Summary judgment is a drastic remedy, to be granted only where the moving party has tender[ed] sufficient evidence to demonstrate the absence of any material issues of fact, and then only if, upon the moving party's meeting of this burden, the non-moving party fails to establish the existence of material issues of fact which require a trial of the action. The moving party's [f]ailure to make [a] prima facie showing [of entitlement to summary judgment] requires a denial of the motion, regardless of the sufficiency of the opposing papers."
Plaintiff's motion is granted without opposition. [*3]
As to Eljamal and the NYCTA's cross motion, they have met their prima facie burden of demonstrating entitlement to summary judgment as a matter of law.
"It is well settled that a rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the driver of the rear vehicle, and imposes a duty on the part of the operator of the moving vehicle to come forward with an adequate nonnegligent explanation for the accident."
In opposition to the cross motion, Fernandez and Tordem Equipment Corp. contend that summary judgment should be denied because the rear of Eljamal's bus protruded into the traveling lane. When asked at his deposition if the bus was parked parallel to the curb or if any part of the bus was in the travel lane, Fernandez testified, "it was slightly on the traveling lanes like I had told before it was sticking out a little bit." (Coffey Affirm., Ex A [Fernandez EBT], at 19.) At his deposition, plaintiff was asked, "Was any part of the bus as it was stopped before it was struck, the rear of the bus in the driving lane?" (Accurso Affirm., Ex A, at 54.) Plaintiff answered, "Yes, yes." (Id.)
Plaintiff maintains that the collision should not be considered a rear-end collision because Fernandez testified at his deposition that his truck swiped against the rear side of the bus after "[a]bout eighty percent" of his truck had already passed by the bus. (Fernandez EBT, at 41.)
As Fernandez and Tordem Equipment Corp. indicate, Section 4-08 of the Traffic Rules and Regulations of the Department of Transportation of City of New York (34 RCN Y), which govern parking, stopping and standing, states, in pertinent part:
"(e) General no stopping zones (stopping, standing and parking prohibited in specified places). No person shall stop, stand, or park a vehicle in any of the following places, unless otherwise indicated by posted signs, markings or other traffic control devices, or at the direction of a law enforcement officer, or as otherwise provided in this [*4]subdivision:
Eljamal and the NYCTA argue that Fernandez's operation of his vehicle was the sole proximate cause of the accident, because Fernandez had struck a stopped vehicle.
In White v Diaz (49 AD3d 134 [1st Dept 2008]), the Appellate Division, First Department extensively discussed "[t]he often vexatious question of whether a negligent act may be viewed as a proximate cause of an accident, as opposed to merely furnishing the occasion for it." (White, 49 AD3d at 135.)
Writing for the unanimous court, Justice Saxe stated,
"In a number of cases involving double-parked or illegally parked cars where the accident involving a moving vehicle would not have happened but for the improper parking of the second vehicle, courts have declined to rule as a matter of law on the question of whether the violation of a traffic or parking regulation was a proximate cause of the accident. In Sullivan v Locastro (178 AD2d 523 [1991], lv denied 81 NY2d 701 [1992]), a bus illegally parked in an area where no parking was permitted between 7:00 a.m. and 9:00 a.m. arguably prevented pedestrians from seeing oncoming vehicles and blocked the drivers' view of pedestrians attempting to cross the road, and a child was struck by a car as he tried to check whether it was safe to cross. The Court held that the question of whether the bus's breach of the parking regulation was a proximate cause of the reasonably foreseeable accident was a fact issue for a jury. Similarly, in Ferrer v Harris (55 NY2d 285 [1982]), a child was struck by a car attempting to pass a double-parked ice cream truck, and the Court held that the liability of the ice cream truck driver was a fact question for a jury. And, in Somersall v New York Tel. Co. [*5](52 NY2d 157, 168 [1981]), where the plaintiffs, who were gathered on the sidewalk, were struck by a car that mounted the curb, and the driver, who had only a learner's permit, may have been trying to avoid a double-parked utility truck in the road, the Court held that a reasonable jury could conclude that the double parking was a concurrent cause of the accident.
These cases, as well as the Dowling case [Dowling v Consolidated Carriers Corp., 65 NY2d 799 (1985)], highlight an important point to keep in mind. Ordinarily, issues of proximate cause are fact questions to be decided by a jury (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]). 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" (id.), where there is any doubt, confusion, or difficulty in deciding whether the issue ought to be decided as a matter of law, the better course is to leave the point for the jury to decide."
Eljamal and the NYCTA attempt to distinguish White on the facts, because the driver of the offending vehicle in White fell asleep at the wheel and struck an illegally parked car. They argue that the facts of this case are more analogous to Sheehan v City of New York (40 NY2d 496 [1976]). In Sheehan, a City of New York sanitation truck with defective brakes rear-ended a bus owned by the Manhattan and Bronx Surface Transit Operating Authority, which had stopped in a traveling lane to discharge passengers. The Court of Appeals ruled that the alleged negligence of the bus driver in failing to pull over to the bus stop was not, as a matter of law, a proximate cause of the accident, because "the bus at the time of the accident appears merely to have been at one point in the street where it had a right to be (the traveling lane) rather than at another point in the street where it had a right to be (the bus stop)." (Id. at 502.)
Eljamal and the NYCTA's reliance on Sheehan is misplaced. The position of the bus in Sheehan is different from the position of the bus asserted in this case. In Sheehan, the position of the stopped bus in a traveling lane to discharge passengers was no different than if the bus had lawfully merged into the traveling lane after having pulled away from the bus stop. Thus, it could not be argued that the collision would not have occurred if the bus had not negligently stopped in the traveling lane. Whether the bus in Sheehan was stopped in the traveling lane due to negligent operation or happened to be in the lane due to observance of the traffic laws and [*6]rules, the position of the bus vis-à-vis the offending vehicle in either scenario would be the same.
Unlike this case, Sheehan did not involve a stopped bus that protruded into another traveling lane. The alleged position of the bus here, which Fernandez and Tordem Equipment Corp. contend violated 34 RCNY § 4-08 (e), would be different from the position of a bus that observed traffic rules. (See Dowling v Consolidated Carriers Corp., 103 AD2d 675 [1st Dept 1984]["The situation here is fundamentally different. On the facts accepted in the motion papers of the bus defendants, the buses were stopped where they had no right to be, in direct violation of statute and regulation, and where vehicles would have a right to be only in unusual, carefully limited circumstances"].)
Plaintiff indicates that the facts of this case are more analogous to Fitzgerald v New York City Transit Authority (2 AD3d 577 [1st Dept 2003].) In Fitzgerald, a car collided with a bus stopped at a bus stop, and the bus was "angled so that its rear section protruded into, and obstructed, a lane of moving traffic." (Id. at 578.) The Appellate Division, First Department upheld the lower court's decision denying summary judgment to the NYCTA, reasoning, "[t]he fact that a codefendant might be negligent as a matter of law for rearending a stopped vehicle does not mean that the operator of the stopped vehicle was necessarily free of negligence." (Id.)
Therefore, Eljamal and the NYCTA's cross motion for summary judgment is denied.
Questions of fact are raised as to whether the bus was operated in a negligent manner,
and if, so whether that negligence was a substantial factor in causing the collision.
Accordingly, it is hereby
ORDERED that plaintiff's motion for summary judgment striking defendants' affirmative defenses alleging comparative negligence is granted without opposition; and it is further
ORDERED that the first and third affirmative defenses of the verified answer of defendant Nilson Fernandez are stricken, the first and third affirmative defenses of the verified answer of defendants Said Eljamal and the New York City Transit Authority are stricken, and the affirmative defenses of comparative negligence and of the plaintiff's alleged failure to use a seatbelt in the answer of defendant Tordem Equipment Corp. are stricken; and it is further
ORDERED that the cross motion for summary judgment by defendants Eljamal and the New York City Transit Authority is denied; and it is further
ORDERED that the remainder of the action shall continue.
[*7]Dated: March 18,
2014New York, New YorkENTER:
/s/
J.S.C.