Opinion
# 2015-047-128 Claim No. 124173 Motion No. M-86902 Cross-Motion No. CM-87081
12-08-2015
JENNIFER BUSTAMANTE and JOHN F. TOBON v. THE STATE OF NEW YORK and THE CITY UNIVERSITY OF NEW YORK
Worby Groner Edelman LLP By: Michael L. Taub, Esq. Eric T. Schneiderman, Attorney General of the State of New York By: Edward J. Curtis, Jr., AAG
Synopsis
Claimants allege personal injuries and the deprivation of services as a result of Bustamante being struck by the bicycle of a campus bicycle patrol officer on the grounds of Lehman College. Claimants moved for summary judgment. Summary judgment was denied, as there are issues as to whether both Bustamante and Liz acted reasonably, and Bustamante has not shown herself to be free of comparative fault. The State of New York cross-moved to be dismissed, without objection, as it is not a proper defendant. The cross-motion was granted, as the State is not liable for an injury which took place on the campus of Lehman College.
Case information
| UID: | 2015-047-128 |
| Claimant(s): | JENNIFER BUSTAMANTE and JOHN F. TOBON |
| Claimant short name: | BUSTAMANTE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK and THE CITY UNIVERSITY OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124173 |
| Motion number(s): | M-86902 |
| Cross-motion number(s): | CM-87081 |
| Judge: | O. Peter Sherwood |
| Claimant's attorney: | Worby Groner Edelman LLP By: Michael L. Taub, Esq. |
| Defendant's attorney: | Eric T. Schneiderman, Attorney General of the State of New York By: Edward J. Curtis, Jr., AAG |
| Third-party defendant's attorney: | |
| Signature date: | December 8, 2015 |
| City: | New York |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimants Jennifer Bustamante and John F. Tobon first filed their claim on April 7, 2014. The Amended Verified Claim was filed on June 9, 2014. Claimants each assert a single cause of action. Bustamante claims personal injuries as a result of being struck by the bicycle of a campus bicycle patrol officer on the grounds of Lehman College. Tobon, Bustamante's husband, claims "depriv[ation] of the services, society and consortium" of his wife (Amended Claim, ¶ 29). Claimants filed a Note of Issue on April 30, 2015, and a Motion for Summary Judgment on June 26, 2015 (M-86902). Defendants opposed and cross-moved to dismiss the claim as against the State of New York on August 3, 2015 (CM-87081).
In connection with this motion, the court read and considered the Amended Verified Claim (NYSCEF Doc. No. 10), the Verified Answer (NYSCEF Doc. No. 14), the Notice of Motion for Summary Judgment (NYSCEF Doc. No. 22), the Affirmation in Support of Motion for Summary Judgment (NYSCEF Doc. No. 23), the Notice of Cross-Motion (NYSCEF Doc. No. 41), the Affirmation in Support of [Cross-]Motion (NYSCEF Doc. No. 42), the Reply Affirmation (NYSCEF Docs. No. 44 and 46), and the attachments to those documents.
These claims arise out of an injury sustained by claimant Bustamante while on the campus of Lehman College on May 30, 2013. Bustamante was walking away from the library with a friend, changed direction to return to the library, walked a few steps, and was struck by a bicycle operated by Jose Liz, a campus bicycle patrol officer. Bustamante fell down. Officer Liz and the bicycle fell on top of her. She was subsequently taken to the hospital with a leg injury. She claims a variety of injuries restricting her daily living which are related to her leg injury, including compartment syndrome, weakness requiring the use of a brace, and numbness (Amended Verified Claim, Schedule A).
Officer Liz testified at a deposition that he was on bike patrol on May 30, 2013, and that he carried his bicycle up the stairs near the library. He had no further recollection of any events until he found himself on the ground, unable to rise, with pain in his shoulder, hip, elbow, and back. The next thing he remembered, he was in a room in the gym. He was then taken to the hospital in an ambulance.
Now, claimants move for summary judgment. The State of New York cross-moves to be dismissed, as it is not a proper defendant, and the State is not liable for an injury which took place on the campus of Lehman College. Claimants have no objection, and agree to discontinue the action against the State. The City University of New York (CUNY) opposes the granting of summary judgment to the claimants on the ground that there are disputed issues of material fact. CUNY argues that Bustamante's change of direction and failure to see the bicycle coming shows a lack of ordinary care, and constitute culpable conduct. CUNY also claims there is an issue of fact as to whether Liz lost consciousness before or after the collision, and that his loss of consciousness before the collision would constitute an intervening cause and prevent recovery.
The standards for summary judgment are well settled. Summary judgment is a drastic remedy which will be granted only when the party seeking summary judgment has established that there are no triable issues of fact (see CPLR 3212 [b]; Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]). To prevail, the party seeking summary judgment must make a prima facie showing of entitlement to judgment as a matter of law tendering evidentiary proof in admissible form, which may include deposition transcripts and other proof annexed to an attorney's affirmation (see Alvarez v Prospect Hosp., supra; Olan v Farrell Lines, 64 NY2d 1092 [1985]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Absent a sufficient showing, the court should deny the motion without regard to the strength of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]).
Once the initial showing has been made, the burden shifts to the party opposing the motion for summary judgment to rebut the prima facie showing by producing evidentiary proof in admissible form sufficient to require a trial of material issues of fact (see Kaufman v Silver, 90 NY2d 204, 208 [1997]). Although the court must carefully scrutinize the motion papers in a light most favorable to the party opposing the motion and must give that party the benefit of every favorable inference (see Negri v Stop & Shop, 65 NY2d 625 [1985]) and summary judgment should be denied where there is any doubt as to the existence of a triable issue of fact (see Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978]), bald, conclusory assertions or speculation and "[a] shadowy semblance of an issue" are insufficient to defeat a summary judgment motion (S.J. Capalin Assoc. v Globe Mfg. Corp., 34 NY2d 338, 341 [1974]; see Zuckerman v City of New York, supra; Ehrlich v American Moninger Greenhouse Mfg. Corp., 26 NY2d 255, 259 [1970]). Lastly, "[a] motion for summary judgment should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility" (Ruiz v Griffin, 71 AD3d 1112 [2d Dept 2010], quoting Scott v Long Is. Power Auth., 294 AD2d 348 [2d Dept 2002]).
Here, claimants argue that summary judgment is appropriate because it is undisputed that Officer Liz collided with Bustamante while riding his bicycle. Claimants argue this creates a presumption of negligence, relying on automotive collision cases in which one car rear-ended another, or in which a car crossed the line designating a lane (Taub Aff in Support of Motion at 16- 18). CUNY contends that Liz's actions were not the sole proximate cause of the claimants' injuries, that Bustamante's actions also contributed to the collision. Bustamante was walking on the path and changed direction shortly before she was struck by Officer Liz's bicycle (Bustamante Dep Tr, attached as exhibit G to Taub Aff., at 22-23). She did not see him before the collision (id. at 23). Therefore, argues CUNY, there is a question of fact as to whether Bustamante acted reasonably, making this case inappropriate for summary judgment.
As the Court of Appeals has noted, "[n]ormally, if the facts are uncontested summary judgment is appropriate. However, this is not always so in negligence suits, because even when the facts are conceded there is often a question as to whether the defendant or the plaintiff acted reasonably under the circumstances. This can rarely be decided as a matter of law" (Andre v Pomeroy, 35 NY2d 361, 364 [1974]). Additionally, to obtain summary judgment of liability in a personal injury action, a claimant must show freedom from comparative fault. Where a claimant "fail[s] to establish, as a matter of law, that [s]he was free from comparative negligence. . . , [t]he failure to make such a showing requires the denial of the motion, regardless of the sufficiency of the defendants' opposition papers" (Roman v A1Limousine, Inc., 76 AD3d 552, 552-553 [2d Dept 2010][citations omitted]). A claimant may obtain a judgment after trial without establishing freedom from comparative fault, but not upon a motion for summary judgment, as fault should be determined at one time, rather than piecemeal (Maniscalco v New York City Tr. Auth., 95 AD3d 510, 512 [1st Dept 2012]). Here, there are issues as to whether both Bustamante and Liz acted reasonably, and Bustamante has not shown herself to be free of comparative fault.
Accordingly, claimants' motion for summary judgment is DENIED, and defendants' unopposed cross-motion for summary judgment is GRANTED. The State of New York is dismissed from this action.
December 8, 2015
New York, New York
O. Peter Sherwood
Judge of the Court of Claims