Opinion
152054/15
07-13-2016
Kenneth Burrus, Plaintiff, v. New York City Transit Authority, BOBBY BROWN and CRYSTAL WHITE, Defendants.
For Transit Defendants—Movants: Lawrence Heisler, Esq. By: James H. Berkson, Esq. 130 Livingston Street, 11th Floor Brooklyn, New York 11201 (718) 694-5338 For Plaintiff—Non-Movant: Evan Cahmi, Esq. Law Office of Michael G. Nashak 4 MetroTech Center, Suite 08C06, 8th Floor Brooklyn, New York 11201 (718) 510-8800 For Co-Defendant Crystal White—Non-Movant: Howard Schatz, Esq. Silbowitz, Garafola, Silbowitz, Schatz & Frederick, LLP 25 West 43rd Street New York, New York 10036 (212) 354-6800
For Transit Defendants—Movants: Lawrence Heisler, Esq. By: James H. Berkson, Esq. 130 Livingston Street, 11th Floor Brooklyn, New York 11201 (718) 694-5338 For Plaintiff—Non-Movant: Evan Cahmi, Esq. Law Office of Michael G. Nashak 4 MetroTech Center, Suite 08C06, 8th Floor Brooklyn, New York 11201 (718) 510-8800 For Co-Defendant Crystal White—Non-Movant: Howard Schatz, Esq. Silbowitz, Garafola, Silbowitz, Schatz & Frederick, LLP 25 West 43rd Street New York, New York 10036 (212) 354-6800 Michael D. Stallman, J.
Plaintiff Kenneth Burrus alleges that, on May 15, 2014 at around 6 a.m., he was injured when a bus owned by defendant New York City Transit Authority and operated by defendant Bobby Brown came into contact with the vehicle in which he was a passenger. (Berkson Affirm., Ex. A [Complaint] ¶¶ 27-29.) Defendants New York City Transit Authority and Bobby Brown (collectively, Transit Defendants) move for summary judgment arguing that videographic evidence conclusively shows that co-defendant Crystal White's "reckless opening of her door into the side of [Transit Defendants'] bus is the sole proximate cause of the subject accident." (Berkson Affirm. ¶ 15.) Plaintiff and defendant Crystal White oppose the motion.
BACKGROUND
Transit Defendants submit videographic evidence of the subject accident attached to their motion papers as Exhibit D. This video contains time-stamped footage from eight different bus cameras, and also provides data regarding the speed and direction of the bus. The footage begins at 5:57:00 and ends at 6:16:59. At around 6:00:20, the front window camera of the bus appears to show the subject silver Nissan Altima—which was being operated by defendant White—driving several car lengths ahead of the subject bus, as both vehicles move south along Lexington Avenue. At around 6:00:35 the Altima and the bus appear to come to concurrent stops along the west side of Lexington Avenue, just past the intersection with East 26th Street, where the bus subsequently discharges passengers. At around this time, plaintiff alleges that he noticed the bus " cause he was honking. He was beeping the horn at us." (Camhi Opp. Affirm., Ex. A [Statutory Hearing ] at 17:05-25.) Brown admits that he did honk his horn, and states that he did so "because Ms. White had improperly stopped in the bus stop and to let her know that the bus was behind her." (Berkson Reply Affim., Ex. A [Brown Reply Aff.] ¶ 2.) At around 6:00:47, the bus begins to pull out of the right lane and into the lane to the left with the Altima remaining stopped and its right turn signal blinking. At around 6:00:50, the front window camera of the bus appears to have largely passed the Altima, and the Altima can be seen by the camera facing the front door. At around 6:00:51, the Altima can be seen by the camera facing the middle door of the bus. At around 6:00:53, the Altima can be seen from the camera facing the rear door with the Altima's driver side door open, and there is a noticeable impact made against the bus's rear door, with the bus traveling at 14 miles per hour.
Plaintiff testified at a statutory hearing on July 2, 2014 concerning the subject accident. Because there is no evidence that defendant White was given the opportunity to be represented at the statutory hearing, this Court will not use the statutory hearing as evidence against defendant White—even though it is defendant White who submits the statutory hearing transcript. (See Claypool v City of New York, 267 AD2d 33, 35 [1st Dept 1999] [holding that a statutory hearing transcript could not be used to establish liability of parties not present at that hearing].) --------
ARGUMENTS
Defendants argue that this videographic evidence conclusively establishes that defendant Crystal White's "reckless opening of her door into the side of [Transit Defendants'] bus is the sole proximate cause of the subject accident." (Berkson Affirm. ¶ 15.) Plaintiff and defendant White oppose the instant motion arguing there are material issues of fact, and that it would be premature for this Court to grant Transit Defendants' motion before the close of discovery. In particular, plaintiff and defendant White argue that plaintiff's statutory hearing testimony "indicates that the bus driver, by honking his horn prior to the accident was aware of what was about to occur and could have avoided the instant accident." (Schatz Opp. Affirm. ¶ 10; see also Camhi Opp. Affirm. at 6 [stating that "the bus' horn sounding suggests MR. BROWN saw something that impacted the operation of the bus prior to the impact which is not addressed in his affidavit"].) Thus, plaintiff and defendant White argue that there is a material issue of fact concerning whether Transit Defendants failed to see what there was to be seen and make the appropriate responses. (Camhi Opp. Affirm. at 6-7; Schatz Opp. Affirm. ¶¶ 9-14.) In reply, defendant Brown admits that he did honk his horn, but that he did so "because Ms. White had improperly stopped in the bus stop and to let her know that the bus was behind her." (Berkson Reply Affim., Ex. A [Brown Reply Aff.] ¶ 2.) Transit defendants contend that plaintiff and defendant White have failed to raise any material issues of fact and are merely speculating that defendant Brown could have done something more to avoid the instant accident. (Berkson Reply Affim. ¶¶ 9-17.)
DISCUSSION
Summary judgment is a drastic remedy, to be granted only where the moving party has tendered sufficient evidence to demonstrate the absence of any material issues of fact and then only if, upon the moving party's meeting of this burden, the non-moving party fails to establish the existence of material issues of fact which require a trial of the action."
(Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012] [internal citations, emendation, and quotation marks omitted].) Furthermore, on a motion for summary judgment, "facts must be viewed in the light most favorable to the non-moving party." (Id. [internal quotation marks omitted].)
Transit Defendants' motion is granted. The videographic evidence clearly shows that defendant White opened her door into the rear door of the bus, seconds after the front portion of the bus had passed. In doing so, defendant White violated Vehicle & Traffic Law § 1214 which states that:
"No person shall open the door of a motor vehicle on the side available to moving traffic unless and until it is reasonably safe to do so, and can be done without interfering with the movement of other traffic, nor shall any person leave a door open on the side of a vehicle available to moving traffic for a period of time longer than necessary to load or unload passengers."
In addition, defendant White was negligent in failing to see what she should have seen through the appropriate use of her senses. (See Montesinos v Cote, 46 AD3d 774 [2d Dept 2007] [affirming summary judgment in favor of defendants where "evidence established that the injured plaintiff violated Vehicle and Traffic Law § 1214 by opening the door on the side of her car adjacent to moving traffic when it was not reasonably safe to do so, and was negligent in failing to see what, by the reasonable use of her senses, she should have seen"].)
Given that defendant White opened her door into the subject bus after roughly half of the length of the bus had passed her, defendant White was the sole proximate cause of the accident, and Transit Defendants are not liable for plaintiff's injuries as a matter of law. Plaintiff and defendant White argue that there is a material issue of fact concerning whether defendant Brown failed to see what should have been seen with the proper use of his senses. However, on these facts, it would appear that plaintiff and defendant White are claiming that defendant Brown failed to divine into the future and foresee that defendant White would open her door as he was passing around her. Moreover, their assertion that defendant Brown honked his horn because he suspected defendant White might open her door as he attempted to pass is rank speculation. (See Warden v Orlandi, 4 AD3d 239, 242 [1st Dept 2004] ["[R]ank speculation is no substitute for evidentiary proof in admissible form that is required to establish the existence of a material issue of fact and, thus, defeat a motion for summary judgment." [internal quotation marks and emendation omitted]].)
Finally, summary judgment is not premature. Here, the videographic evidence unequivocally establishes that defendant White opened her door into the subject bus after roughly half of the length of the bus had passed her—and therefore that defendant White was the sole proximate cause of the accident. No amount of further discovery will change these facts.
CONCLUSION
Accordingly, it is hereby
ORDERED that the motion for summary judgment by defendants New York City Transit Authority and Bobby Brown is GRANTED in favor of these defendants, and the complaint is dismissed in its entirety as against said defendants only, and all cross-claims against said defendants are dismissed with costs and disbursements to said defendants as taxed by the Clerk upon the submission of an appropriate bill of costs, and the Clerk is directed to enter judgment accordingly in favor of these defendants; and it is further
ORDERED that the action is severed and continued against the remaining defendant; and it is further
ORDERED that this personal injury action is respectfully referred to the General Clerk's Office for reassignment to the Motor Vehicle Part.
Dated: July13, 2016
New York, New York
ENTER: /s/
J.S.C.