Opinion

Caminero v. New York City Tr. Auth.

  • 2024 NY Slip Op 33866(U)
Court
New York Supreme Court, New York County
Filed
Oct 29, 2024
Status
Unpublished
Author
Richard Tsai
Cited by
0 cases
Authority
More cited than 31.5%

The opinion

Caminero v New York City Tr. Auth.

2024 NY Slip Op 33866(U)

October 29, 2024

Supreme Court, New York County

Docket Number: Index No. 154870/2022

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.

INDEX NO. 154870/2022

NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 10/29/2024

SUPREME COURT OF THE STATE OF NEW YORK

NEW YORK COUNTY

PRESENT: HON. RICHARD TSAI PART 21

Justice

----------------------------------------------------------------- ----------------X INDEX NO. 154870/2022

ANGEL CAMINERO,

MOTION DATE 01/25/2024

Plaintiff,

MOTION SEQ. NO. 002

- V -

NEW YORK CITY TRANSIT AUTHORITY,

METROPOLITAN TRANSPORTATION AUTHORITY.

MANHATTAN AND BRONX SURFACE TRANSIT DECISION + ORDER ON

OPERATING AUTHORITY and ERIC A. ALLEYNE- BUS MOTION

DRIVER,

Defendants.

------------------------------------------------------------------- --------------X

The following e-filed documents, listed by NYSCEF document numbers (Motion 002) 7, 10, 37-46, 50-56,

72-76 76, 85, 87, 89, 90-92

were read on this motion to/for SUMMARY JUDGMENT (AFTER JOINDER)

In this action, plaintiff Angel Caminero alleges that he was operating a stopped

motor vehicle which was rear-ended by a bus owned by defendants New York City

Transit Authority (NYCTA), and Metropolitan Transportation Authority (MTA), and

operated by defendant Eric A. Alleyne, with the permission and consent of defendant

Manhattan and Bronx Surface Transit Operating Authority (MABSTOA).

Plaintiff now moves for partial summary judgment as to liability in his favor

against defendants, and to strike the affirmative defense of plaintiff's culpable conduct.

Defendants NYCTA, MTA and Eric A. Alleyne oppose this motion. Defendant

MABSTOA did not oppose this motion.

BACKGROUND

Plaintiff Angel Caminero alleges that, on February 28, 2022, he was operating his

2013 Toyota motor vehicle, which was stopped at a red light on the corner of 12th Avenue

and West 48th Street in Manhattan (verified amended complaint [NYSCEF Doc. No. 7],

,m 18-19). Plaintiff further alleges that while he was stopped, a bus owned by defendant

NYCTA, operated by defendant Alleyne with the permission and consent of defendants

NYCTA and MABSTOA, struck his vehicle in the rear (id. at 14-16, 20). ,m

Defendant NYCTA admits it owned the subject bus, and that the bus was operated

by defendant Alleyne, within the scope of his employment by defendant MABSTOA, and

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Motion No. 002

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NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 10/29/2024

with the permission of defendant NYCTA (verified amended answer [NYSCEF Doc. No.

10] ,i 3).

At plaintiff's statutory hearing he stated the following: at the scene of the incident,

the West Side Highway, there were three lanes of traffic, his vehicle was in the right

lane, and the bus was behind him in the right lane (plaintiff's Exhibit C [NYSCEF Doc.

No. 42] statutory hearing transcript, at 23, lines 2-16); there were no other vehicles

involved in the incident (id., at 23, lines 17-19); as he was driving on the West Side

Highway "the light was green at the time and then it turned red. I proceeded to slow

down and then I came to a full stop at the light. And as I'm standing there, I'm looking at

the rearview mirror and I see the bus approaching the car and no sign of stopping and I

got hit" (id. at 23, lines 20-25 through 24, lines 2-7); the front bumper of the bus came

into contact with the rear tow hitch/bike rack of his vehicle (id. at 24 lines 14-19); the

only "thing I heard was at the last minute, the brakes, the air brakes of the bus activate"

(id., at 24, line 25 through 25, lines 2-6).

At his deposition, plaintiff testified as follows: he was travelling northbound on the

West Side Highway (plaintiff's exhibit D [NYSCEF Doc. No. 42] Caminero EBT

transcript, at 21, lines 11-18). There were three lanes on the West Side Highway, and

his vehicle and the bus were both in the right lane when the accident occurred (id. at 23,

lines 2-14). The bus was behind his vehicle and there were no other vehicles involved

in the accident (id. at 23, lines 15-19). He stopped his vehicle at a red traffic light, and

"[a]s I'm standing there, I'm looking at the rearview mirror and I see the bus approaching

the car and no sign of stopping, and I got hit" (id. at page 23 lines 22-25 through page

24 lines 1-7). He had been stopped at red light for "about eight seconds" before the

"front bumper'' of the bus made contact with his "rear tow hitch/bike rack' (id. page 24

lines 8-19). There was no vehicle in front of him at the red light - "I was the first one in

line" and the bus was directly behind him (id. at 25, lines 7-12). He did not know how

fast the bus was going but that "[w]hat I could tell you is, I saw him coming and he was

approaching into the car kind of fast and he didn't stop, but I don't know how fast he

was going, no idea" (id. at 25, line 19 through 26, lines 14). An MTA supervisor arrived

at the scene of the accident, and he spoke to her (id. at 42, lines 3-9).

At defendant Alleyne's deposition, he testified as follows: his bus came into

contact with another vehicle on the right lane of traffic on 12th Avenue (plaintiff's exhibit

E [NYSCEF Doc. No. 43] Alleyne EBT transcript, at 18, lines 11-15); he was in right

lane of traffic for at least ten seconds prior to the impact (id., at 19, lines 8-11 ); the other

vehicle involved in the collision had been "traveling in front of the bus" and that he had

seen it before the accident (id., at 23, lines 18-25); that the other vehicle involved in the

accident "stopped suddenly" (id., at 24, lines 19-21 ); that "[i]t stopped suddenly to make

a turn" but he did not remember the vehicle he collided with, or another vehicle, was

trying to make a turn (id. at 25, lines 3-25); that the other vehicle "came to a stop,

abruptly" and "I tried to stop also" (id., at 27, lines 5-12); that the other vehicle had come

to a stop before the impact (id., at 27, lines 13-16); that prior to the accident he had

applied the brakes in a "heavy" way to avoid impact with the vehicle in front (id., at 30,

lines 7-25); that he "applied the brake abruptly, and it [the bus] stopped" (id., at 35, lines

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Motion No. 002

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17-22); that front bumper of the bus, right in the middle of the bumper, made contact

with something like a tow hitch of vehicle in front (id. at 37, lines 17-25).

Defendant Alleyne prepared an accident report at the time of the alleged accident

(plaintiff's exhibit F [NYSCEF Doc. No. 44] bus accident report). At statutory hearing

defendant Alleyne confirmed the report was written and signed by him (Alleyne EBT

transcript at 41, lines 2-19). Defendant Alleyne provided this description of the accident

in the accident report: "Bus travelling north, second vehicle in front of bus made sudden

right turn, I was bit distracted, I applied brake but still made contact to rear of van

directly in front of bus. Contact was very minimal, no presence of damage was visible"

(bus accident report). At defendant's Alleyne's EBT, he stated that the "second vehicle"

referred to another vehicle (not the vehicle involved in the accident) (defendant's EBT at

42, lines 25 through at 43, lines 2-7).

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

NY3d 167, 175 [2019] [internal citations and quotation marks omitted]).

On a motion for summary judgment, "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]).

In support of its motion, plaintiff argues his vehicle was stopped at the time

defendant rear-ended plaintiff's vehicle, relying on the testimony of plaintiff and

defendant Alleyne, and video footage from the bus. 1

"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 [1st Dept 2022]).

Here the time-stamped video footage from the bus not only contains footage from

nine different bus cameras, but also provides data regarding the speed, direction, and

1

In its reply, plaintiff affirmed it would submit a thumb drive to the court with video footage from

the bus during the alleged incident (plaintiff's reply affirmation [NYSCEF Doc. No. 89) ,I 14).

This thumb drive was received by the court on June 14, 2024. As plaintiff submitted this video

footage for the first time in reply, defendants were provided with an opportunity to submit a sur-

reply (see interim order on motion (NYSCEF Doc. No. 96). Defendants submitted sur-reply

(NYSCEF Doc. No. 97).

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Motion No. 002

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geographic location of the bus. The footage begins at 15:02:0?hrs and ends at

15:32:00hrs on February 28, 2022. This video footage establishes the following:

15:09:07 The bus is travelling in the right lane on 12th Avenue between West 44th

and West 45th streets, at a speed of 23 mph.

15:09:12 From the forward camera view of the bus (Forward Facing camera),

plaintiff's vehicle begins a maneuver from left lane into the right lane.

Meanwhile the bus is travelling at 19 mph.

15:09:15 From the forward camera view of the bus, plaintiff's vehicle concludes

maneuver from left lane into the right lane, and is now travelling in the

same lane and in front of the bus Meanwhile, the bus is travelling at 23

mph.

15:09:20 The bus is travelling in the right lane on 12th Avenue between West 46th

and West 47th Streets, at a speed of 23 mph. Plaintiff's vehicle is visible

ahead and in the same lane as the bus.

15:09:24 From the forward camera view of the bus, the distance between bus and

plaintiff's vehicle begins to get shorter. The bus is still travelling at 23

mph.

15:09:27 From the forward camera view of the bus, the distance between bus and

plaintiff's vehicle shortens again. Bus is travelling at 21 mph.

15:09:32 From the forward camera view of the bus, the distance between bus and

plaintiff's vehicle shortens again. Bus travelling at 16 mph.

15:09:34 The bus is travelling north-northeast in the right lane on 12th Avenue

between West 47th and West 48th Streets, at a speed of 16 mph. In the

same lane, plaintiff's vehicle is ahead, is travelling north-northeast with its

break lights on.

15:09:36 From the forward camera view, a white van in front of plaintiff's moving

vehicle begins to turn right on to West 48 th Street. Bus is travelling at 12

mph.

15:09:37 From the forward camera view, a white van in front of plaintiff's moving

vehicle continues its turn right. Plaintiff's brake lights are visible. Bus is

travelling at 6 mph.

15:09:38 From the camera view of the driver (IPCamera 08), bus is very close to

plaintiff's vehicle but not in contact. Plaintiff's brake lights are not visible,

bus is travelling a 0 mph.

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15:09:39 From the forward camera, the white van continues its turn right and

plaintiff's brake lights are visible, and plaintiff's car appears to have

stopped because lane ahead is not clear. Bus is travelling at 5 mph.

15:09:39 From the camera view of the driver, bus rear-ends plaintiff's vehicle.

Based on the video footage, plaintiff has established its prima facie entitlement to

summary judgment as a matter of law. Defendants failed to rebut the presumption of

defendant Alleyne's negligence and did not raise a triable issue of fact as to the defense

based on the emergency doctrine.

Alleyne's testimony that plaintiff's vehicle stopped suddenly "is contradicted by

the video footage (Miranda v Century Waste Services, LLC, 210 AD3d 590, 591 [1st

Dept 2022]). Therefore, such testimony fails to raise a triable issue of fact as to his

negligence (id.; see also Kanuteh v New York City Tr. Auth., -AD3d-, 2024 NY Slip

Op 05054 [1st Dept 2024] [affirming summary judgment in favor of defendants where

plaintiff's testimony was "contradicted by the video evidence establishing that the bus

never left its lane of travel and that the truck started to leave its parked spot"]).

Defendants failed to demonstrate that Alleyne "could have 'reasonably expected that

traffic would continue unimpeded' under the circumstances" (Perez v City of New York,

-AD3d-, 2024 NY Slip Op 05296 [1st Dept 2024], quoting Baez-Pena v MM Truck

and Body Repair, Inc., 151 AD3d 473 [1st Dept 2017]).

Likewise, defendants' argument that the video footage supports an emergency

doctrine defense and that the plaintiff's vehicle "was driving in a reckless, erratic manner

prior to the subject incident occurring - including swerving in-and-out of lanes in a short

period of time before stopping short" (sur-reply in opposition ,i,i 5, 11 [NYSCEF Doc. No.

97]) - is unavailing. The video footage shows the following: (1) defendants' vehicle

was travelling in the same lane as, and behind, the plaintiff's vehicle for 24 seconds

prior to the accident; (2) in the 13 second period before the accident, the bus had

slowed from 23 mph to 6 mph, i.e., the bus was slowing down; (3) immediately prior to

the accident, both the plaintiff's vehicle and defendants' bus appear to have stopped;

and (4) plaintiff's vehicle was stopped when rear-ended by defendants' bus, i.e.,

defendants' bus having stopped then began to move and came into contact with

plaintiff's stopped vehicle (see Martinez v ITF LLC, 216 AD3d 429, 430 [1st Dept 2023]

[holding that "the dash cam video" established that "the emergency doctrine is

inapplicable"]).

As the incident occurred within the scope of Alleyne's employment as a bus

operator employed by MABSTOA, MABSTOA is vicariously liable for Alleyne'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]). The

NYCTA, as the admitted owner of the vehicle who admittedly gave Alleyne permission

to use the vehicle, is vicariously liable for Alleyne's negligence under Vehicle and Traffic

Law§ 388 (see Murdza v Zimmerman, 99 NY2d 375, 379 [2003]).

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Motion No. 002

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NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 10/29/2024

Finally, defendants NYCTA, MTA and Eric A. Alleyne have a pending motion for

summary judgment (motion seq 003) in which they are seeking an order dismissing

plaintiff's complaint for failure to satisfy the serious injury threshold under New York

Insurance Law§ 5102(d) (NYSCEF Doc. No. 57). To be clear, the determination of

fault of defendants as a matter of law on this motion (motion seq 002) 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]).

CONCLUSION

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

New York City Transit Authority, Manhattan and Bronx Surface Transit Operating

Authority and Eric A. Alleyne; and it is further

ORDERED that the first affirmative defense of plaintiff's culpable conduct in the

answer of defendants is stricken.

10/29/2024

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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Motion No. 002

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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