Boumechal-Toro v. City of New York

Boumechal-Toro v City of New York

2024 NY Slip Op 31356(U)

April 19, 2024

Supreme Court, New York County

Docket Number: Index No. 150689/2023

Judge: James G. Clynes

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. 150689/2023

NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 04/19/2024

SUPREME COURT OF THE STATE OF NEW YORK

NEW YORK COUNTY

PRESENT: HON. JAMES G. CLYNES PART 22M

Jmtice

------------- --- -------- --- ---------------- ------ --- --------------------- --- -----X INDEX NO. 150689/2023

ZUBEIDA ZENA BOUMECHAL-TORO,

MOTION DATE 05/08/2023

Plaintiff,

MOTION SEQ. NO. 001

- V -

THE CITY OF NEW YORK, THE NEW YORK CITY

DEPARTMENT OF EDUCATION, HOYT TRANSPORTATION DECISION + ORDER ON

CORP., LUIS A. SANCHEZ MOTION

Defendants.

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

The following e-filed documents, listed by NYSCEF document number (Motion 001) 17, 18, 19, 20, 21, 22, 23, 24,

25,26,27,28,29,30,31,32,33,34,35,36,37,38,39,40,41,42,43 .

were read on this motion to/for PARTIAL SUMMARY JUDGMENT

Upon the foregoing documents and following oral argument, it is ordered that Plaintiffs

motion for summary judgment on the issue of liability in favor of Plaintiff and against Defendants

Hoyt Transportation Corp (Hoyt) and Luis A. Sanchez (Sanchez) and "dismissing all affirmative

defenses alleging comparative fault on the part of Plaintiffs decedent" by Hoyt and Sanchez and

the cross-motion by Defendants The City of New York and The New York City Department of

Education (the City Defendants) is decided as follows:

Plaintiff commences this action as a result of an April 28, 2022 accident between Decedent-

Pedestrian Fahri Rochdi Boumechal and a motor vehicle owned by Defendant Hoyt and operated

by Defendant Sanchez. Plaintiff Zubeida Zena Boumechal-Toro was duly appointed as

Administrator of the Estate of Fahri Boumechal, deceased.

Plaintiff contends that Decedent was struck and killed by a yellow school bus owned by

Defendant Hoyt and operated by Defendant Sanchez while Decedent-pedestrian was crossing 2nd

Avenue. In support of Plaintiffs motion, Plaintiff relies on the affidavit of a witness, Austin Wu.

Wu avers that he was turning right onto 2 nd Avenue, observed Decedent crossing eastbound on

3 t 11 Street over 2nd Avenue, Decedent was more than halfway across the street within the crosswalk

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NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 04/19/2024

with the pedestrian countdown timer flashing and counting down, as a school bus turned left onto

2nd Avenue from 37 th Street, striking and knocking down pedestrian-Decedent. Wu also had a

dashcam on his vehicle and attached a video link which shows Decedent walking across the street

within the crosswalk, with pedestrian signal counting down, but does not show the impact

In opposition, Defendants contend that there are questions of fact with regard to the

Decedent's usage of a cell phone when the incident occurred. Defendants rely on the affidavit of

Defendant Driver Sanchez, in which he avers that he was the driver of the Hoyt Transportation

Corp. vehicle on the date of the subject accident, after the incident, he stopped his vehicle, exited,

and observed Decedent on the ground not moving, speaking, or making any sounds. Defendant

Sanchez further avers that he observed a cell phone on the ground near Decedent.

Defendants also submit the affidavit of Jessica Espinoza, Spanish interpreter, in which she

avers that she is a paralegal at the office of Silverman Shin & Byrne PLLC, she was requested to

interpret an affidavit for Luis A. Sanchez from English to Spanish, Sanchez appeared in her office,

she read the entire at1idavit to him in Spanish, and Sanchez acknowledged that the contents of the

affidavit were true to the best of his recollection.

Defendants contend that discovery must be completed to see if Decedent was using a cell

phone at the time of the accident because if Decedent was using his cell phone at the time of the

accident, then there is an issue of fact regarding culpable conduct.

In reply, Plaintiff contends that there is no evidence that Decedent was using a phone at

the time. For example, the phone could have fallen out of his pocket when he was struck. Plaintiff

further contends that Defendant Sanchez's affidavit is not in proper form because there is no draft

affidavit submitted in the witness' native language and included in the submission to the Court, so

the affidavit is inadmissible.

"The proponent of a summary judgment motion must make a prima facie showing of

entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material

issues of fact from the case" (Wine grad v NY Univ. Med. Ctr., 64 NY2d 851 [1985]). Once such

entitlement has been demonstrated by the moving party, the burden shifts to the party opposing

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the motion to "demonstrate by admissible evidence the existence of a factual issue requiring a trial

of the action or tender an acceptable excuse for his failure ... to do [so]" (Zuckerman v New York,

49 NY2d 557 [1980]).

Plaintiff has established prima facie entitlement to summary judgment on the issue of

liability. In opposition, Defendants have failed to raise an issue of fact. Defendants' contention

that Decedent's cell phone was found in the street, and thus he may have been distracted by it at

the time of the accident is speculative.

In support of their cross-motion, Defendants contend that neither City Defendant hold any

ownership interest in the school bus that was involved in the subject accident and are not

responsible for the alleged torts of other governmental departments nor those entities' independent

contractors. Defendants submit a signed "Contract Proposal,'' a certified police report, and an

affidavit from Chris J. Termini, President of Hoyt.

Defendants contend that the signed "Contract Proposal" establishes the relationship of

Hoyt being an independent contractor to the Board of Education, which currently operates under

the name Department of Education. This contract details all busing services, including ownership

of all equipment, employment of drivers and matrons and maintenance of all equipment, to be

solely the responsibility of Hoyt, as an independent contractor to the City Defendants.

The certified police report identifies that the bus is owned by Hoyt.

In his affidavit, Termini avers that the City Defendants do not directly provide any school

bus services: school bus services for New York City schoolchildren are carried out by private bus

companies serving as contractors for the New York City Department of Education (DOE); the City

Defendants are not parties to the contract; the bus involved in the accident was owned by Hoyt and

driven by Luis A. Sanchez; and it was operating the route pursuant to a contract between Hoyt and

the DOE. Termini further avers that the City Defendants did not employ Defendant Sanchez on

the date of the accident; they did not hire, train, supervise or direct the activities of Defendant

Sanchez; and they did not supervise or direct the activities by Hoyt on the date of the accident nor

did they own the subject school bus.

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In opposition to the cross-motion, Plaintiff contends that if the Court accepts Termini's

affidavit as true, Plaintiff requests, in the alternative, a dismissal without prejudice of the causes

of action against the City Defendants, with leave to bring back either or both of those entities

should discovery yield new evidence and with all statutes of limitations defenses deemed waived.

In reply, Defendants contend that Plaintiff fails to raise an issue of fact. Defendants

contend that Hoyt is an independent contractor to the City Defendants and discovery would not

reveal any evidence leading to a liability finding on their part.

Defendants' cross-motion is granted without prejudice. Accordingly, it is

ORDERED that Plaintiff's motion for summary judgment on the issue ofliability in favor

of Plaintiff and against Defendants Hoyt Transportation Corp and Luis A. Sanchez and "dismissing

all affirmative defenses alleging comparative fault on the part of Plaintiffs decedent" by Hoyt and

Sanchez is GRANTED; and it is further

ORDERED that the cross-motion by Defendants pursuant to CPLR 3212 dismissing the

complaint in its entirety against THE CITY OF NEW YORK and THE NEW YORK CITY

DEPARTMENT OF EDUCATION on the grounds that they are improper parties to this action is

GRANTED; and it is further

ORDERED that the complaint is dismissed as against said Defendants, without prejudice

of the causes of action against the City Defendants, with leave to bring back either or both of those

entities should discovery yield new evidence and with all statutes of limitations defenses deemed

waived; and it is further

ORDERED that and the Clerk is directed to enter judgment accordingly in favor of said

Defendants; and it is further

ORDERED that the action is severed and continued against the remaining Defendants;

and it is further

ORDERED that the caption be amended to reflect the dismissal and that all future papers

filed with the court bear the amended caption; and it is further

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NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 04/19/2024

ORDERED that counsel for the moving party shall serve a copy of this order with Notice

of Entry upon the Clerk of the Court and the Clerk of the General Clerk's Office, who are directed

to mark the court's records to reflect the change in the caption herein; and it is further

ORDERED that such service upon the Clerk of the Court and the Clerk of the General

Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on

Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-

Filing" page on the court's website).

This constitutes the Decision and Order of the Court.

4/19/2024

DATE:

CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

GRANTED □ DE'i!ED GRANTED IN PART □ OTHER

APPLICATION: SETfLE ORDER Sl:B\IIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMEl'ff □ REFERENCE

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