The opinion
Abreu v New York City Tr. Auth.
2024 NY Slip Op 33537(U)
October 4, 2024
Supreme Court, New York County
Docket Number: Index No. 150346/2021
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 10/07/2024 12:55 P~ INDEX NO. 150346/2021
NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 10/04/2024
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. RICHARD A. TSAI PART 21
Justice
----------------------------------------------------------------- ----------------X INDEX NO. 150346/2021
JOSE R. ALMONTE ABREU,
MOTION DATE 11/15/2023
Plaintiff,
MOTION SEQ. NO. 001
- V -
NEW YORK CITY TRANSIT AUTHORITY, MANHATTAN
AND BRONX SURFACE TRANSIT OPERATING
DECISION + ORDER ON
AUTHORITY, METROPOLITAN TRANSPORTATION
AUTHORITY, MTA BUS COMPANY and JIMMY ORTIZ, MOTION
Defendants.
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The following e-filed documents, listed by NYSCEF document number (Motion 001) 16-33
were read on this motion to/for SUMMARY JUDGMENT (AFTER JOINDER)
In this action, plaintiff Jose R. Almonte Abreu alleges that on November 14, 2019
on or about 8:38 PM, he was a passenger on a bus owned and maintained by
defendant New York City Transit Authority and operated by defendant Jimmy Ortiz,
around the intersection of Amsterdam Avenue and West 134th Street, when the bus
came "to a sudden, unexpected and violent stop" causing him injuries (exhibits A-C in
support of motion [NYSCEF Doc. Nos. 26-28], complaint, answer, and bill of
particulars).
On this motion, defendants move for summary judgment on the grounds that they
have no liability for the accident pursuant to the emergency doctrine (affirmation in
support of motion [NYSCEF Doc. No. 17] ,m
9-16). Plaintiff opposes the motion.
DISCUSSION
"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
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
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NY3d 167, 175 [2019] [internal citations and quotation marks omitted]).
On a motion for summary judgement, "facts must be viewed in the light most favorable
to the non-moving party" (Vega v Restani Const. Corp., 18 NY3d 499, 503 [2012]
[internal quotation marks omitted]).
The emergency doctrine
"recognizes that when an actor is faced with a sudden and unexpected
circumstance which leaves little or no time for thought, deliberation or
consideration, or causes the actor to be reasonably so disturbed that the
actor must make a speedy decision without weighing alternative courses
of conduct, the actor may not be negligent if the actions taken are
reasonable and prudent in the emergency context, provided the actor has
not created the emergency" (Caristo v Sanzone, 96 NY2d 172, 174 [2001]
[internal citations and quotation marks omitted]).
"[W]hile it is often a jury question whether a person's reaction to an emergency was
reasonable, summary resolution is possible when the individual presents sufficient
evidence to support the reasonableness of his or her actions and there is no opposing
evidentiary showing sufficient to raise a legitimate issue of fact on the issue" ( Castillo v
New York City Tr. Auth., 188 AD3d 484, 486 [1st Dept 2020] [internal quotation marks,
emendation and citations omitted])
In support of this motion, defendants submit the deposition testimony of
defendant Jimmy Ortiz (exhibit C in support of motion [NYSCEF Doc. No. 20], Ortiz
depo). Ortiz testified that shortly before the accident, he was stopped at a bus stop on
the southbound side of Amsterdam Avenue near the intersection with 135th Street (id.
at 19, line 17 through 20, line 22; at 40, line 2 through 41, line 14; at 47 line 25 through
50, line 24 ). Ortiz further testified that before pulling out from the bus stop, he checked
his left sideview mirror and determined that "[t]here was no car at all coming behind me
when I left the bus stop, none" (id. at 40, line 2 through 15).
Ortiz testified that, within "[s]econds", an unidentified SUV "came right in front of
me, I had on stop [sic] at the moment" and that his bus only traveled "a foot" before the
other vehicle "cut in front of me" from his left side (id. at 52, line 7 through 56, line 8; see
also id. at 27, line 22 through 28, line 13 [describing the unidentified SUV]). Ortiz
testified that the rear portion of the unidentified SUV struck his "driver's side mirror" and
that he "lightly" pressed the brakes "[t]o avoid getting into a serious accident", bringing
the bus to a stop within "[a]bout three seconds or so" (id. at 56, line 3 through 64, line
14).
Ortiz testified that the unidentified SUV stopped "[m]aybe two feet away, give or
take" from the bus in the bus's single southbound lane of travel, but that the SUV was
stopped "on an angle" to the left of the bus "because he came around" (id. at 26, line 2
through 33 line 5). Ortiz testified that a male driver then exited the unidentified SUV and
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"came right and front of my window" (id. at 26, line 2 through 30, line 20). Ortiz testified
that he "slightly opened" his window", but did not say anything to the other driver, and
that he "can't recall" whether the other driver said anything to him (id.). Ortiz further
testified that this interaction with the other driver lasted "seconds", that no information
was exchanged between himself and the other driver, that he did not see the license
plate of the other car, and that he did not ask for the other driver's name and address
"[b ]ecause he left" (id.). 1
Defendants have also provided video footage from the date and the time of
accident: at 8:31 PM on November 14, 2019 (exhibit Bin support of motion [NYSCEF
Doc. No. 19]).
In opposition, plaintiff argues that, based upon Ortiz's testimony, it was Ortiz who
cut off the other vehicle "when leaving the bus stop, forcing that vehicle to swerve
around him causing the incident" (affirmation of plaintiff's counsel in opposition
[NYSCEF Doc. No. 25] ,i 119). Plaintiff further counsel asserts that the video footage
"supports Plaintiff's assertion that as the bus pulled out of the stop, Mr. Ortiz did not see
the other vehicle approaching causing it to have to swerve around the bus causing the
incident" (id. ,i 127).
Starting at the 8:31 :05 PM minute mark of the video footage, the bus is stopped
at the bus stop on the southbound side of Amsterdam Avenue, just south of the
intersection of west 135th Street, as the plaintiff can be seen boarding the bus wearing
a green hat on camera 07. At 8:31 :17 PM, the video shows the bus pulling out from the
bus stop and entering the single lane of southbound travel. At 8:31 :22, on camera 08,
an unidentified white SUV is seen passing the bus to the left over an area of the
roadway shaded by diagonal "zebra" double lines, striking the bus's left sideview mirror,
cutting in front of the bus and coming to an immediate stop in front of the bus at 8:31 :25.
The bus also comes to an immediate stop at this same time. At the same time that the
bus is braking, other cameras on the bus capture plaintiff losing his balance, falling
towards the front of the bus and striking his head on a yellow handrail.
The most important moment in the bus video footage, however, occurs in the
background on camera 07 in the roughly five seconds between 8:31: 15 and 8:31 :20.
During this time, through the passenger windows, on the driver's side of the bus, the
headlights of a car can be seen approaching and then running parallel with the bus.
Seconds after the headlights have passed out of view on Camera 07, the unidentified
SUV comes into view on Camera 08 and can be seen striking the driver's side view
mirror.
The court agrees with plaintiff's counsel that, when viewed in the light most
favorable to the nonmovant, the video footage raises an issue of fact as to whether Ortiz
1
The court notes that, although the bus video footage has no audio, between 8:31 :39 and
8:32:22, the video footage appears to show the driver of the unidentified vehicle and Ortiz
gesturing to each other while the driver of the unidentified SUV stands outside Ortiz's open
driver side window.
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pulled into the path of the oncoming vehicle, and therefore "fail[ed] to see that which,
through the proper use of one's senses, should have been seen" before making the
lane change (Salama v Piccirillo, 223 AD3d 692, 693 [2d Dept 2024] [internal quotation
marks, emendation and citations omitted]).
The court also agrees with plaintiff that the video evidence could reasonably
support the inference that the path of the unidentified vehicle into Ortiz's bus was
caused by Ortiz when he changed lanes. That is, because Ortiz may have
unexpectedly merged into the unidentified SUV's lane of travel, the unidentified SUV
was forced to swerve suddenly to the left and then swerved back to the right to avoid
oncoming traffic, into the path of Ortiz's bus. Consequently, a triable issue of fact arises
as to whether the "emergency" that Ortiz asserts he was faced with was of "his own
making" (Blake v New York City Tr. Auth., 217 AD3d 914,915 [2d Dept 2023]).
Therefore, defendants' motion for summary judgment is denied.
CONCLUSION
Accordingly, upon the foregoing documents, it is hereby ORDERED that the
motion for summary judgment by defendants is DENIED.
This constitutes the decision and order of the court.
10/4/2024
DATE RICHARD TSAI, J.S.C.
~
CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION
GRANTED 0 DENIED GRANTED IN PART □ OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
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