The opinion
Vargas v MTA Bus Co.
2024 NY Slip Op 33582(U)
October 8, 2024
Supreme Court, New York County
Docket Number: Index No. 150611/2019
Judge: Richard Tsai
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.
[FILED: NEW YORK COUNTY CLERK 10/09/2024 10: 20 AM] INDEX NO. 150611/2019
NYSCEF DOC. NO. 107 RECEIVED NYSCEF: 10/08/2024
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. RICHARD TSAI PART 21
Justice
----------------------------------------------------------------- ----------------X INDEX NO. 150611/2019
NANCY MARIN VARGAS,
MOTION DATE 05/17/2024
Plaintiff,
MOTION SEQ. NO. 004
- V -
MTA BUS COMPANY, TIME WARNER ENTERTAINMENT
COMPANY, L.P., NEIL 0. SMITH and AMBROSE N. DECISION + ORDER ON
GRANT, MOTION
Defendants.
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The following e-filed documents, listed by NYSCEF document numbers (Motion 004) 72-105
were read on this motion to/for JUDGMENT - SUMMARY
Upon the foregoing documents, it is ORDERED that plaintiff's motion for partial
summary judgment as to liability is GRANTED TO THE EXTENT that partial summary
judgment is granted on the issue of liability only in plaintiff's favor as against defendants
MTA Bus Company and Neil 0. Smith; and it is further
ORDERED that the first affirmative defense of plaintiff's culpable conduct in the
answer of defendants MTA Bus Company and Neil 0. Smith is stricken; and the
second affirmative defense of plaintiff's culpable conduct in the answer of defendants
Time Warner Entertainment Company, L.P. and Ambrose N. Grant is stricken; and it
is further
ORDERED that plaintiff's motion is otherwise denied; and it is further
ORDERED that the parties are directed to appear for the previously scheduled,
in-person, status conference in courtroom 280 at 80 Centre Street, New York, NY on
January 9, 2025 at 2:15 p.m.
In this personal injury action arising out of a motor vehicle collision, plaintiff now
moves for partial summary judgment as to liability in her favor against defendants, and
to strike their affirmative defenses of plaintiff's culpable conduct. Defendants MTA Bus
Company and Neil 0. Smith (collectively, the Transit Defendants) oppose the motion.
Defendants Time Warner Entertainment Company, L.P., and Ambrose N. Grant
(collectively, the Time Warner Defendants) partially oppose the motion.
"On a motion for summary judgment, the moving party must make a prima
facie showing of entitlement to judgment as a matter of law, tendering
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sufficient evidence to demonstrate the absence of any material issues of
fact. If the moving party produces the required evidence, the burden shifts
to the nonmoving party to establish the existence of material issues of fact
which require a trial of the action" (Xiang Fu He v Troon Mgt., Inc., 34
NY3d 167, 175 [2019] [internal citations and quotation marks omitted]).
At her deposition, plaintiff testified that, on June 22, 2018, at approximately 3:00
p.m., she was a passenger on the Q49 bus (see plaintiff's Exhibit Lin support of motion,
plaintiff's EBT at 18, line 12 through 19, line 5). Plaintiff stated that she was seated in
the back, next to the window on the same side as the driver (id. at 25, lines 19-20; at 26,
lines 4-9). According to plaintiff, an accident occurred at 34th Avenue and 89th Street,
approximately 15 minutes after she boarded the bus (id. at 31, lines 18-20; at 32, lines
21-25). Plaintiff testified that she "heard like a loud noise. Like it crashed with
something," and she felt an impact pushing her towards the front and then towards the
back (id. at 33, lines 20-25; at 34, lines 13-14).
At his deposition, defendant Neil 0. Smith testified that, on June 22, 2018, at
approximately 2:34 p.m., he was the bus operator of a bus on the Q49 bus route (see
plaintiff's Exhibit M, Smith EBT, at 36, lines 11-15 [NYSCEF Doc. No. 89]). Smith
recalled that he had an accident at 89th Street and 34th Avenue (id. at 39, lines 9-13).
Smith testified he saw a Spectrum work van in front of the bus, as soon as Smith had
made the turn onto 89th Street (id. at 42, lines 9-13). Smith described the Spectrum
van as a white and blue "little pickup truck," with one or two ladders on top of the left
and right sides (id. at 46, lines 7-8, 11-25). According to Smith, one ladder extended
past the end of the truck, "all the way out," "a good length" past the back of the truck
(id. at 47, lines 5-9; at 48, lines 11-15).
Smith testified that the truck "made a sudden stop," and "that's when the - the
ladder - I tried to, you know, maneuver, and the ladder made contact with my
windshield" (id. at 61, lines 18-21). In the Transit Defendants' answer, defendant MTA
Bus Company admitted that it was the owner of the bus and that Smith was the operator
of the bus (see plaintiff's Exhibits Band C in support of motion ,m 26, 32 [NYSCEF Doc.
Nos. 78 and 79]).
At his deposition, defendant Ambrose N. Grant testified that, on June 22, 2018,
he was involved in an accident which occurred on June 22, 2018, at about 2:00 or 3:00
in the afternoon (plaintiff's Exhibit N in support of motion, Ambrose EBT, at 41, lines 6-
11, 20-23 [NYSCEF Doc. No. 90]). Grant stated that he was driving a Chevy van, and
that he was driving that vehicle as part of his job for his employer, Spectrum (id. at 41,
line 24 through 42, line 5; at 42, line 11, lines 22-23).
Grant testified that his vehicle was stopped at a red light (id. at 60, line 24
through 61, line 2), and that when the light turned green, he proceeded to make a right
turn (id. at 61, lines 16-20). Grant stated that he did not complete the turn because
some kids were crossing the street, and a crossing guard instructed him to stop (id. at
62, lines 3-12). According to Grant, while the kids were crossing the street, he then
heard a boom (id. at 62, lines 19-23). When asked what caused the boom, Grant
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answered, "The M.T.A. bus hit the truck, hit the ladder of the truck" (id. at 62, line 24
through 63, line 3).
"A rear-end collision with a stopped vehicle, or one slowing down,
establishes a prima facie case of negligence by the operator of the rear-
ending vehicle, unless he or she gives an adequate nonnegligent
explanation for the accident"
(Alvarez v Bracchitta, 210 AD3d 458, 459 [1 st Dept 2022]). Here, plaintiff met the prima
facie burden of establishing Smith's negligence, based on Grant's testimony that his
vehicle was stopped, and on Smith's testimony that the bus collided with the ladder on
Grant's vehicle.
The Transit Defendants failed to rebut the presumption of Smith's negligence and
did not raise a triable issue of fact as to a defense based on the emergency doctrine.
Although the Transit Defendants argue that Grant's vehicle suddenly stopped
(see affirmation of Transit Defendants' counsel ,m
9-10), "a claim that the lead driver
came to a sudden stop, standing alone, is insufficient to rebut the presumption that the
rearmost driver was negligent and the stopped vehicle was not negligent" (Ly Giap v
Hathi Son Pham, 159 AD3d 484,485 [1st Dept 2018]). Because "[t] he emergency
doctrine applies only to circumstances where an actor is confronted by a sudden and
unforeseen occurrence not of the actor's own making ... it is typically not available to
defendants in rear-end collisions particularly where, as here, the driver was obligated to
maintain a safe rate of speed and a reasonable distance between the vehicles
(Jacobellis v New York State Thruway Auth., 51 AD3d 976, 977 [2d Dept 2008] [internal
citations omitted]).
The Transit Defendants' argument that plaintiff failed to serve a notice of claim
upon them is unavailing. Because the MTA Bus Company is a subsidiary of defendant
Metropolitan Transportation Authority (see e.g. Watkins-Bey v City of New York, 174
AD3d 553, 555 [2d Dept 2019]; Wolfson v Metropolitan Transp. Auth., 123 AD3d 635,
636 [1st Dept 2014]), service of a notice of claim as a condition precedent to suit is not
required for claims against the MTA Bus Company (see Public Authorities Law§ 1276
[6]; see Andersen v Long Is. R.R. Auth., 59 NY2d 657; see also Burgess v Long Is. R.R.
Auth., 172 AD2d 302 [1991]; Stampf v Metropolitan Transp. Auth., 57 AD3d 222 [1st
Dept 2008]).
Thus, plaintiff is entitled to partial summary judgment as to liability in her favor
against defendants MTA Bus Company and Smith. As the incident occurred within the
scope of Smith's employment as a bus operator, and the MTA Bus Company admitted
ownership of the vehicle, the MTA Bus Company is vicariously liable for Smith's
negligence under the doctrine of respondeat superior (Rivie/lo v Waldron, 47 NY2d 297,
302 [1979]; Ryga v New York City Tr. Auth., 17 AD3d 561, 562 [2d Dept 2005]).
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To be clear, the determination of fault of defendants MTA Bus Company and
Smith as a matter of law on this motion does not include the issue of whether plaintiff
suffered a serious injury within the meaning of Insurance Law§ 5102 (d), "which is a
threshold matter separate from the issue of fault" (Reid v Brown, 308 AD2d 331, 332
[1st Dept 2003]).
Summary judgment as to liability in plaintiff's favor against the Time Warner
Defendants is denied. As the Time Warner Defendants point out, plaintiff did not
establish that Grant's operation of his vehicle was negligent. "[A]n innocent passenger
must still establish a defendant driver's liability under traditional principles of tort liability
in order to prevail on the issue of liability against that driver" ( Campbell v Mince/lo, 184
AD3d 412 [1st Dept 2020]). Here, Grant, the driver of the lead vehicle, which was
stopped, is presumed not negligent (Giap, 159 AD3d at 485; see also Soto-Maroquin v
Mel/et, 63 AD3d 449, 450 [1st Dept 2009]).
However, plaintiff is entitled to summary judgment dismissing the affirmative
defenses of the Transit Defendants and the Time Warner Defendants of plaintiff's
culpable conduct, as they failed to raise an issue of fact as to plaintiff's negligence.
20241008112130RTS~48CAAF879738F89A818
10/8/2024
DATE RICHARD TSAI, J.S.C.
~
CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION
GRANTED □ DENIED GRANTED IN PART □ OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
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