Opinion
Index No. 153187/2021 Motion Seq. No. 001
05-15-2023
KEVEN CRUZADO, Plaintiff, v. UTTAM SAMADDER, METROPOLITAN TRANSPORTATION AUTHORITY, NEW YORK CITY TRANSIT AUTHORITY, AMERICAN TRANSIT INSURANCE COMPANY, PHILLIP RABINOWITZ Defendant.
Unpublished Opinion
PRESENT: HON. DENISE M. DOMINGUEZ, Justice
DECISION AND ORDER ON MOTION
HON. DENISE M. DOMINGUEZ, JUSTICE
The following e-filed documents, listed by NYSCEF document number (Motion 001) 14, 15, 16, 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 were read on this motion to/for DISMISSAL.
For the reasons that follow, Defendants Metropolitan Transportation Authority and New York City Transit Authority's (Transit) motion pursuant to CPLR §3211(a)(1) and (7) is granted, and Plaintiff s cross-motion to amend the complaint is denied.
Background
This personal injury matter arises out of a motor vehicle accident between a Honda vehicle and a Toyota vehicle on December 31, 2019, at Rockaway Boulevard, near the intersection of Brookville Boulevard, in Queens County. It is alleged that the Honda vehicle, operated by non-party Rayon Morgan, became disabled in the right-hand lane when the Toyota vehicle, owned by Defendant, Philip Rabinowitz, and operated by Defendant, Uttam Samadder, (Samadder), rear-ended it. It is further alleged that Samadder was operating the Toyota vehicle as an Access-a-Ride vehicle at the time of the accident in conjunction with Transit's Access-a-Ride/paratransit program. Plaintiff was a passenger in the Toyota vehicle at the time of the accident (NYSCEF Doc. 17).
In Plaintiffs summons and complaint, the first cause of action alleges negligence against all Defendants. As the second cause of action, Plaintiff alleges negligent supervision and training as to Transit and Rabinowitz. Plaintiffs complaint does not state a third cause of action and the fourth cause of action alleges Respondent Superior as to Transit and Rabinowitz.
Transit now move pre-note of issue to dismiss the second cause of action pursuant to CPLR §3211(a)(7). Alternatively, Transit also moves to dismiss the claim of negligent entrustment pursuant to CPLR §3211(a)(1). Plaintiff cross-moves for leave to amend the complaint pursuant to CPLR §3025 (b).
Transit's Motion to Dismiss
In considering a motion to dismiss, pleadings must be liberally construed, the facts alleged taken as true, and the benefit of every possible favorable inference given (Himmelstein, McConnell, Gribben, Donoghue & Joseph, LLP v. Matthew Bender & Co., Inc., 37 N.Y.3d 169 [2021], quoting Leon v. Martinez, 84 N.Y.2d 83 [1994]; Connaughton v. Chipotle Mexican Grill, Inc., 29 N.Y.3d 137[2017]). Whether a plaintiff can ultimately establish his or her allegations is not part of the equation in deciding a motion to dismiss (EBC I, Inc. v. Goldman, Sachs & Co., 5 N.Y.3d 11 [2005]). Nor does the cause of action need to be pleaded with specificity (see Water bury v New York City Ballet, Inc., 205 A.D.3d 154 [1st Dept 2022]; JG v. Goldfinger, 161 A.D.3d 640 [1st Dept. 2018]). The pleadings, however, must plead the essential elements of the claims (see Kornfeld v. Chen Hua Zheng, 185 A.D.3d 420 [1st Dept 2020]).
A cause of action alleging that an employer was negligent in the supervision and training of an employee requires more than just pleading the elements of negligence (Coffey v. City of New York, 49 A.D.3d 449 [1st Dept 2008]; Kornfeld, 185 A.D.3d 420). The pleadings at least must allege that an employer-employee relationship exists, and that the employer knew or should have known of the employee's tortious wrong-doing (id;see e.g. Naegele v. Archdiocese of New York, 39 A.D.3d 270 [1st Dept 2007]).
Here, Plaintiffs cause of action for negligent supervision and training states in part that "as common carriers, Defendants Rabinowitz and [Transit] owed a duty of care to exercise reasonable care and caution in owning/operating/maintaining the Vehicle and its operators. Defendants Rabinowitz and [Transit] breached their duty to Plaintiff by failing to properly supervise and train its employees, agents and servants to exercise reasonable care in operating/driving its AAR vehicles, including the Vehicle on December 31, 2019. As a result of Defendants Rabinowitz and [Transit] breaching their duty to Plaintiff, Plaintiff was seriously injured.....when the vehicle crashed into/'rear ended'/struck non-party Rayon Morgan's disabled vehicle, described supra (NYSCEF Doc. 1).
Upon review, while Plaintiffs second cause of action alleges negligence language and other parts of the complaint allege an employee and employer relationship, it is bare and silent as to the slightest allegation that Samadder had any history of prior driving accidents, that he was an inexperienced or reckless driver, or any other allegation of driving wrong-doing. Nor does the complaint allege that Transit knew or should have known of any such history. Further, in opposition, Plaintiffs papers do argue in favor of this cause of action or attempt to cure it. Rather, Plaintiff s amended complaint appears to remove the second cause of action all together (NYSCEF Doc. 32).
Accordingly, even upon generously and liberally construing the pleadings, a viable claim of negligent supervising and training is not plead. Thus, the second cause of action against Transit is dismissed.
Transit also moves to dismiss a claim for negligent entrustment, alleging that Plaintiffs bill of particular attempts to raise such a claim. Since the purpose of the bill of particulars is to amplify the pleadings and not to introduce a new cause of action, any claim of negligent entrustment against Transit is dismissed as this time (Paterra v. Arc Dev. LLC, 136 A.D.3d 474 [1stDept 2016] quoting Alami v. 215 E. 68th St., L.P., 88 A.D.3d 924 [2d Dept. 2011] and Melino v. Tougher Heating & Plumbing Co., 23 A.D.2d 616 [3d Dept. 1965]; Kornfeld 185 A.D.3d 420).
Plaintiffs Cross-Motion to Amend the Complaint
At the court's discretion, pleadings may be freely amended as long as amended pleadings are sufficient or have merit (see CPLR §3025 (b); Edenwald Contracting Co. v. City of New York, 60 N.Y.2d 957 [1983]; Mendoza v. Akerman Senterfitt LLP, 128 A.D.3d 480 [1st Dept 2015]; Cafe Lughnasa Inc. v. A & R Kalimian LLC, 176 A.D.3d 523 [1st Dept 2019]; see also Zabas by Zabas v. Kard, 194 A.D.2d 784 [2d Dept 1993]; Heller v. Louis Provenzano, Inc., 303 A.D.2d 20 [1st Dept 2003]).
Here, Plaintiff alleges that the proposed amended complaint seeks to (1) insert additional factual allegations relating to and further amplifying the plead claims; (2) remove the second cause of action and (3) amend the remaining causes of action. Yet, the submitted proposed amended complaint is not legible and appears to be a draft with edits. Furthermore, the reasoning for the proposed edits and changes is not provided. Accordingly, Plaintiffs cross-motion to amend the complaint is denied without prejudice.
It is hereby
ORDERED that Defendant METROPOLITAN TRANSPORTATION AUTHORITY and NEW YORK CITY TRANSIT AUTHORITY'S motion to dismiss is granted to the extent that Plaintiffs second cause of action is dismissed; and it is further
ORDERED that Defendant METROPOLITAN TRANSPORTATION AUTHORITY and NEW YORK CITY TRANSIT AUTHORITY'S motion to dismiss is granted to the extent that Plaintiffs claim of negligent entrustment is dismissed; and it is further
ORDERED that Plaintiffs cross-motion to amend the complaint is denied without prejudice; and it is further
ORDERED that counsel are directed to submit a joint proposed preliminary conference order by July 10, 2023, as per Part 21 rules.