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
154870/2022 CAMINERO, ANGEL vs. NEW YORK CITY TRANSIT AUTHORITY ET AL Page 1 of 6
Motion No. 002
1 of 6
[* 1]
INDEX NO. 154870/2022
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
154870/2022 CAMINERO, ANGEL vs. NEW YORK CITY TRANSIT AUTHORITY ET AL Page 2 of 6
Motion No. 002
2 of 6
[* 2]
INDEX NO. 154870/2022
NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 10/29/2024
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).
154870/2022 CAMINERO, ANGEL vs. NEW YORK CITY TRANSIT AUTHORITY ET AL Page 3 of 6
Motion No. 002
3 of 6
[* 3]
INDEX NO. 154870/2022
NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 10/29/2024
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.
154870/2022 CAMINERO, ANGEL vs. NEW YORK CITY TRANSIT AUTHORITY ET AL Page 4 of 6
Motion No. 002
4 of 6
[* 4]
INDEX NO. 154870/2022
NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 10/29/2024
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]).
154870/2022 CAMINERO, ANGEL vs. NEW YORK CITY TRANSIT AUTHORITY ET AL Page 5 of 6
Motion No. 002
5 of 6
[* 5]
INDEX NO. 154870/2022
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
154870/2022 CAMINERO, ANGEL vs. NEW YORK CITY TRANSIT AUTHORITY ET AL Page 6 of 6
Motion No. 002
6 of 6
[* 6]