Opinion
21476/2018E
04-08-2021
Juan B. FROMETA as Administrator for the Estate of Carmen Altagracia Puello, deceased, and Juan B. Frometa, individually, Plaintiffs, v. MAR-CAN TRANSPORTATION COMPANY, INC., and Aquiles R. Sanchez, Defendants.
Plaintiff, Yuriy Prakhin office@prekhinlaw.com, 718-946-5099, 1883 86th St Floor 2, Brooklyn, NY 11214 Defendants Mar Can - Clarissa Palmer, clarissa.palmer@lewisbrisbois.com, 212-863-9521, 77 Water street, 2100, New York, 10005
Plaintiff, Yuriy Prakhin office@prekhinlaw.com, 718-946-5099, 1883 86th St Floor 2, Brooklyn, NY 11214
Defendants Mar Can - Clarissa Palmer, clarissa.palmer@lewisbrisbois.com, 212-863-9521, 77 Water street, 2100, New York, 10005
Veronica G. Hummel, J. In accordance with CPLR 2219(a), the decision herein is made upon consideration of all papers filed in NYSCEF as submitted by the parties regarding: the motion of plaintiffs JUAN B. FROMETA as Administrator for the Estate of CARMEN ALTAGRACIA PUELLO, deceased, and JUAN B. FROMETA, individually (jointly "the Administrator") [Mot. Seq. 2], made pursuant to CPLR 3025, for an order: permitting the filing of (or deem filed) and serving of the proposed Supplemental Summons and Amended Verified Complaint ("the Proposed Amended Complaint") to include proposed plaintiffs "Juan B. Frometa as Father and Natural Guardian of J.F. an Infant, N.F. an Infant, and Connie Frometa" ("the Proposed Plaintiffs") as additional plaintiffs in this action and to allege claims on behalf of the Proposed Plaintiffs against current defendants MAR-CAN TRANSPORTATION COMPANY, INC., and AQUILES R. SANCHEZ ("the Bus Company") and against proposed new additional defendants New York City Board of Education, the City of New York, and New York City Department of Education Office of Pupil Transportation ("the Proposed City Defendants"), and to add claims on behalf of the Administrator as against the Proposed City Defendants; granting the Administrator an order permitting the Administrator and the Proposed Plaintiffs leave to serve a proposed amended notice of claim, nunc pro tunc , or in the alternative, granting the Administrator and the Proposed Plaintiffs leave to renew this portion of the motion upon appearance by the Proposed City Defendants; and the motion of the Administrator [Mot. Seq. 3], made pursuant to CPLR 3212, for an order granting the Administrator partial summary judgment as to liability and dismissing the affirmative defense of comparable negligence as against the Bus Company.
According to the Original Complaint, on October 14, 2016, at approximately 12:25p.m., defendant Sanchez ("the defendant driver") was operating a school bus in the course of his employment with defendant Mar-Can Transportation Company, Inc. ("the vehicle owner") when he struck the decedent Carmen Altagracia Puello ("the decedent") ("the Accident"). The vehicle owner is a private school bus company with a contract to transport students for the City of New York, and it is alleged that the City of New York, in some form, is listed as an additional insured on the vehicle owner's policy.
Juan Frometa was married to the decedent and the couple has three children: J.F. an Infant, and N.F. an Infant ("the Infant Children"), and Connie Frometa ("the Adult Child").
At the time of the Accident, the decedent was walking at or near the intersection of West Fordham Road and Sedgwick Avenue, Bronx County. The decedent was in the process of crossing the intersection carrying apples when she was struck and killed by the Bus Company's vehicle. The defendant driver admitted that he was in the center lane of three lanes on West Fordham Road and attempted to make an illegal right-hand turn onto Sedgwick Avenue heading southbound. As he made his turn, he saw "apples" flying into his windshield and stopped. Upon stopping, he realized that he had struck and run over the decedent. He did not see the decedent prior to stopping the bus.
The Administrator submits a video that shows the turn of the bus as described . The video reveals that there was nothing blocking the defendant driver's view of the road or the turn, and that the decedent had the right of way. Based on where the bus and the car behind it stopped after the impact, and where the bystanders ran to help the decedent, the video shows that the decedent landed near the curb a few feet from the edge of the cross-walk. It is undisputed that the decedent had the walk sign, was hit by the bus, was thrown forward, and the vehicle then ran over her body. The decedent was conscious after impact and was transported to the hospital, where she died.
The video shows shadows in the cross-walk that are difficult to decipher.
Approximately two months after the Accident, on December 13, 2016, the decedent's husband, Frometa, filed a notice of claim, naming himself as "Proposed Administrator" of the decedent's estate, via an attorney ("the Original Notice of Claim"). The Original Notice of Claim names the City of New York and the Department of Transportation only and alleges that the relevant city entities negligently designed, maintained, and remediated the dangerous intersection where the Accident occurred. There is no mention of any theories of liability based on a contractual relationship between the City of New York, the New York City Board of Education, or the Department of Transportation and the Bus Company.
On May 9, 2017, Frometa appeared for a hearing against the two noticed city agencies pursuant to GML 50-h ("the 2017 50-h Hearing"). During the 2017 Hearing, he testified that there were witnesses to the Accident in the neighborhood and his lawyer acknowledged that Frometa had a list of witnesses with their telephone numbers ("the Witness List"). No lawsuit was commenced against the City or its agency as a result of this hearing before the statute of limitations for a claim against the City entities expired.
The defendant driver was criminally charged in Bronx Criminal Court based on the Accident. While the papers submitted by the parties are inconsistent as to the initial criminal charges, defendants admit in the affirmation in opposition that the defendant driver:
"was arrested and charged in the Bronx Criminal Court for violating Vehicle and Traffic Law (VTL) § 1160(a) as well as AC 19-190. [The defendant driver] did plead guilty to ‘Failure to Yield’. Upon information and belief, he ultimately pled guilty in the Bronx County Criminal Court to a vehicle infraction under VTL § 1146, "Right of Way," in satisfaction of all criminal charges. He was sentenced to a one-year conditional discharge and ordered to pay a monetary fine and complete a driver improvement class". [NYSCEF No. 78].
Based on the criminal information filed on February 7, 2021, the defendant driver was also charged with AC 19-190[a] (right of way), AC 19-190[b](right of way), and VTL 1146 [a] (drivers to exercise due care). Frometa was issued limited Letters of Administration and appointed Administer of the decedent's estate on December 19, 2017 ("the Administrator"). The anticipated distributes of the decedent's estate are Frometa, the Infant Children, and the Adult Child.
A hearing before Administrative Law Judge Patrick J. Carroll took place on January 31, 2018, pursuant to section 510(3) of the Vehicle and Traffic Law to investigate the fatal accident. The ALJ found that:
"Based upon the testimony of [the defendant driver] and the narrative in the Police Report, I concur with the findings of the Bronx Criminal Court in that [the defendant driver] failed to use due care at the time of the accident. I further find that [the defendant driver] made an improper turn in violation of VTL § 1160. [The defendant driver] readily admits that he took the right turn from the center or second lane, it is an improper turn. If [he] had been in the right lane when taking the right turn it is possible that he could have seen the pedestrian and avoided this unfortunate occurrence.
DISPOSITION: Fatal Accident: No additional penalties are imposed for failure to use due care as he was already penalized in Bronx Criminal Court. For [the defendant driver's] improper turn in violation of VTL § 1160, [his] license and driving privileges are suspended for an additional 90 days, to run consecutive to his current suspension." [NYSCEF No. 27].
Hence, the Administrative Judge found defendant driver guilty of a violation of VTL 1160.
The Administrator, Frometa, commenced this litigation on February 2, 2018, against the Bus Company. The original complaint contains two causes of action: negligence with pain and suffering (survivorship) and wrongful death. In the first, the Administrator alleges that the decedent sustained a serious injury and economic loss greater than basic loss as defined by the Insurance Law. As damages, the Administrator alleges that:
"That by reason of the aforesaid occurrence, the decedent sustained severe injuries to the head, body and limbs; severe shock to the nervous system,
certain internal injuries, and was caused to suffer severe pain and mental anguish, fear of impending death, all of which said injuries ultimately resulted
in her death, and she was incapacitated from her usual duties and/or vocation and sustained loss of life, all to her damage in an amount to be determined at the time of the trial of this action".
As for damages in the second cause of action based on wrongful death, the Administrator alleges that:
"the deceased left surviving as next of kin and heirs, including her [children] That by virtue of the wrongful death of the said decedent said distributes were and are deprived of the love, support, services, maintenance, guidance, society and comfort of the decedent, and of potential inheritance That in connection with the injuries sustained by the decedent and resulting death, plaintiff necessarily has incurred and become obligated to pay funeral and other expenses in connection with the death and will incur additional expenses in connection with the settlement of the estate of the decedent in various and diverse amounts, all to the damage of this plaintiff and the distributes of said decedent, all to his/her damage in an amount to be determined at the time of the trial of this action".
The Bus Company filed an answer on April 5, 2018. [NYSCEF No. 5]. In the answer, defendants allege general denials and affirmative defenses of: lack of serious injury; culpable conduct and fault of third-party; culpable conduct by the decedent; CPLR 4545 ; spontaneous and unavoidable occurrence; failure to state a cause of action; open and obvious defect; Article 16; emergency doctrine; GOL Article 15; lack of jurisdiction; assumption of risk; paid medical bill offsets; failure to mitigate damages; lack of insurance coverage; lack of affordable care; cost of premiums and out-of-pocket expenses offset; and no cause of action for loss of consortium, respondent superior, wrongful hiring, and negligence.
In an effort to resolve the matter, the parties agreed to mediate the matter before Judge Allen Hurkin Torres at JAMS on June 27, 2019. The Bus Company sought to reschedule the mediation, but apparently it was never rescheduled or conducted.
The Administrator was deposed on November 12, 2019. He again testified that he possessed a list of witnesses on the Witness List who were from the neighborhood and had witnessed or had information about the Accident. On December 5, 2019, the Bus Company served a "post-ebt demand" demanding that the Administrator exchange the Witness List. It was not exchanged.
In May of 2020, almost four-years post-Accident, the Administrator retained new counsel.
Immediately thereafter, on August 17, 2020, the Administrator, through his new attorneys, filed the present motion [Mot. Seq. 2] seeking, in sum and substance, to: serve the Proposed Amended Complaint naming the Infant Children, the Adult Child, and Frometa as plaintiffs (together "the Proposed Plaintiffs") individually; implead the Proposed City Defendants (the New York City Board of Education, the City of New York, and New York City Department of Education Office of Pupil Transportation); and to serve a late notice of claim. Two days later, on May 19, 2020, the Administrator filed the second motion before the court [Mot. Seq. 3] seeking partial summary judgment as to liability and dismissing the affirmative defense of comparative negligence as against the Bus Company. On September 8, 2020, the new attorneys for the Administrator exchanged the Witness List. The Witness List consists of a notebook with a list of six witnesses who allegedly witnessed the Accident, each designated by first name and a telephone number only.
THE MOTIONS
On the motions, the Administrator submits the Proposed Amended Complaint naming the Proposed Plaintiffs as additional plaintiffs and the Proposed City Defendants as additional defendants. In the Proposed Amended Complaint, the Administrator adds, in essence, allegations that, in addition to the Bus Company, all of the Proposed City Defendants were "owners" of the relevant bus, and the defendant driver was operating the bus with their permission based on the allegation that "the vehicle was being operated pursuant to a contract with" the Proposed City Defendants. The causes of action in the amended complaint are alleged against both the Bus Company and the Proposed City Defendants.
The first cause of action alleges that the Bus Company and the Proposed City Defendants are vicariously liable for the defendant driver's negligence, and the second cause of action consists of allegations of negligent hiring, supervision, and training. The third cause of action is based on a claim of wrongful death. The fourth cause of action alleges a claim for loss of consortium on behalf of Frometa. Finally, in the fifth cause of action, the movant alleges a loss of parental guidance and pecuniary claim on behalf of the Proposed Plaintiffs.
As for damages, the Administrator alleges in the first cause of action (vicarious liability/negligence) that the decedent sustained a serious injury and an economic loss greater than basic economic loss as defined under Insurance Law. The Administrator claims that "plaintiffs have been damaged in an amount in excess of the jurisdictional limits" of lower courts, an allegation that is repeated in the other causes of action. In fact, this statement is the only damage allegation in the second cause of action (negligent hiring, supervision, and training).
"[t]he distributees of [the decedent] have sustained substantial damages That by reason of the wrongful acts and omissions on the part of the Defendants [the decedent] has suffered the finality of death, all to their damage which exceeds the jurisdictional limits of all lower courts, which would otherwise have jurisdiction".
As for the loss of consortium claim, the Administrator alleges:
"in consequence of the injuries sustained by the decedent [the Administrator] was deprived of the companionship and consortium of the decedent and permanently lost the services of the decedent for the performance of the household duties usually performed by the decedent.
Finally, in the fifth cause of action, the Administrator alleges that:
"At all times the [decedent's children] resided with and cohabited with [the decedent] That in consequence of the injuries sustained by the decedent, [the decedent's children] are deprived of the companionship of the decedent, love, support, guidance, comfort, income, potential inheritance and permanently lost the services of [the decedent] for the performance of the household duties and care giver duties usually performed by the decedent Furthermore, in consequence of the injuries sustained by the decedent decedent estate has suffered additional pecuniary loss.
The Administrator also moves for leave to serve a new, proposed "amended" Notice of Claim, nunc pro tunc, against the Proposed City Defendants.
On October 29, 2020, the parties appeared at a virtual calendar and orally argued the issues raised in the motions. At the request of counsel, the parties were granted time to submit additional papers on the issues of the effect of the defendant driver's criminal conviction on issue of liability and the relation-back doctrine.
DISCUSSION
Permission to amend a pleading should be freely given where the proposed amendment is neither palpably insufficient nor patently devoid of merit, and there is no evidence that the amendment would prejudice or surprise the opposing party ( Carlino v. Shapiro, 180 A.D.3d 989, 119 N.Y.S.3d 234 [2d Dept. 2020] ; CPLR 3025[b] ). A court should deny such a motion when the proposed amendment is palpably insufficient or patently without merit (Id.; Pedote v. Kelly , 124 A.D.3d 855, 3 N.Y.S.3d 56 [2d Dept. 2015] ). A motion to amend a complaint or other pleading to add a cause of action or theory of recovery that is time barred under the applicable statute of limitations is "patently devoid of merit" ( Carlino v. Shapiro, supra; Schwartz v. Walter , 171 A.D.3d 969, 970, 95 N.Y.S.3d 879 [2d Dept. 2019]; see Whitfield-Ortiz v. Department of Educ. Of City of New York, 116 A.D.3d 580, 984 N.Y.S.2d 327 [1st Dept. 2014] ).
The part of the Administrator's motion [Mot. Seq. 2], made pursuant to CPLR 3025, that seeks permission to amend the complaint to add the Proposed Plaintiffs as plaintiffs and to file (or deem filed) and serve the Proposed Amended Complaint to add claims on behalf of the Proposed Plaintiffs as against the Bus Company and the Proposed City Defendants.
The Motion to Add the Proposed Plaintiffs:
Wrongful death
A wrongful death cause of action in New York is exclusively statutory, the first such statute having been enacted in 1847 (L.1847, ch. 450; see also , NY Const., art. I, § 16 ). There was no common-law cause of action for wrongful death ( Hernandez v. New York City Health and Hospitals Corp., 78 N.Y.2d 687, 578 N.Y.S.2d 510, 585 N.E.2d 822 [1991] ). Under the wrongful death statute, a decedent's personal representative maintains the action for the benefit of the distributees of the estate and "personal representative" is defined as "a person who has received letters to administer the estate of a decedent" ( EPTL 1—2.13, 5-4.1, 5-4.4 ; Id. ; see Heslin v. County of Greene , 14 N.Y.3d 67, 896 N.Y.S.2d 723, 923 N.E.2d 1111 [2010] ). Hence, by express language of the EPTL statute, wrongful death claims are claims that survive the demise of decedent but seek damages that belong to the estate and must be asserted by the personal representative appointed to administer it ( Machado v. Gulf Oil, L.P., 195 A.D.3d 26, 146 N.Y.S.3d 66 [1st Dept. 2021] ; Shelley v. South Shore Healthcare , 123 A.D.3d 797, 999 N.Y.S.2d 103 [2d Dept. 2014] ; Gulledge v. Jefferson County, 172 A.D.3d 1666, 101 N.Y.S.3d 493 [3d Dept. 2019] ; see Heslin v. County of Greene , supra ; see EPTL 1—2.13, 11—3.2[b] ).
Letters of administration, the document necessary to be deemed a personal representative of the decedent's estate, are granted by the Surrogate's Court. Under the Surrogate's Court Procedure Act (SCPA), the order of priority for granting letters of administration to distributees of a decedent who died intestate begins with the surviving spouse, followed by the children and then various other family relations ( SCPA 1001[1] ). Infants, defined as persons under the age of eighteen years, are ineligible to receive letters of administration. If, however, the sole distribute is an infant, his fiduciary, committee or conservator, if he is eligible and qualifies, shall be granted letters of administration (SCPA 1010[1], 1001[2], 707[1][a]; Machado v. Gulf Oil, L.P., supra ).
Of note, while the statutory cause of action for wrongful death must be brought by the personal representative to ensure order in settling decedent's affairs, any damages recovered are exclusively for the benefit of the decedent's distributees ( Gulledge v. Jefferson County, supra ; Heslin v. County of Greene, supra ). A wrongful death action belongs to the decedent's distributees and is designed to compensate the distributees themselves for their pecuniary losses as a result of the wrongful act (see EPTL 5-4.3 ; Heslin v. County of Green, supra ). In a wrongful death action, an award of damages is limited to the fair and just compensation for the pecuniary injuries resulting from the decedent's death to the persons for whose benefit the action is brought ( Leger v. Chasky , 55 A.D.3d 564, 865 N.Y.S.2d 616 [2d Dept. 2008] ; see Estevez v. Tam , 148 A.D.3d 779, 49 N.Y.S.3d 167 [2d Dept. 2017] ). The Administrator pursues damages for the loss of consortium and loss of parental guidance as part of its role as plaintiff in a wrongful death action (see Reid v. St. Luke's-Roosevelt Hospital Center , 191 A.D.3d 545, 138 N.Y.S.3d 342 [1st Dept. 2021] ; Sanchez v. City of New York, 97 A.D.3d 501, 949 N.Y.S.2d 368 [1st Dept. 2012] ).
Here, it is undisputed that the decedent's spouse Frometa received the letters of administration and commenced this action as "Juan B. Frometa, as Administrator for the Estate of Carmen Altagracia Puello, deceased". It is also uncontroverted that the Proposed Plaintiffs are not all infants and the Infant Children are not the sole distributees of the estate. Frometa, as Administrator, is therefore the only person with standing to pursue the cause of action for wrongful death ( Shelley v. South Shore Healthcare, supra ; Jordan v. Jordan , 120 A.D.3d 632, 990 N.Y.S.2d 874 [2d Dept. 2014] ; Heslin v. County of Greene , supra ; Machado v. Gulf Oil, L.P., supra ). Furthermore, as Administrator, he is empowered to pursue damages, on the distributees behalf, for loss of consortium and loss of parental guidance (see Gonzalez v. New York City Hous. Auth. , 77 N.Y.2d 663, 569 N.Y.S.2d 915, 572 N.E.2d 598 [1991] ; Ambroise v. United Parcel Service of America, 143 A.D.3d 929, 40 N.Y.S.3d 444 [2d Dept. 2016] ; Estevez v. Tam, supra ). Consequently, Frometa and the children lack standing to commence the lawsuit as individual plaintiffs. Moreover, as adding the children and Frometa as individual plaintiffs is not necessary to protect their interests, the proposed causes of action based their individual claims are duplicative.
Survivorship (Pain and Suffering)
Likewise, any claim based on pain and suffering under survivorship ( EPTL 11-3.2 ) must be brought by the appointed personal administrator. These claims survive the demise of decedent, but seek damages that belong to her estate and must be asserted by the personal representative appointed to administer it ( Shelley v. South Shore Healthcare, supra ; Gulledge v. Jefferson County , supra ; see Heslin v. County of Greene , supra; see EPTL 1-2.13, 11-3.2 ). Hence, a spouse or child, in their individual capacity, lack standing to assert such claims on behalf of the decedent ( Shelley v. South Shore Healthcare, supra ; Jordan v. Jordan, supra ; Long Island Care Center, Inc. v. Goodman , 137 A.D.3d 874, 26 N.Y.S.3d 595 [2d Dept. 2016] ; Gulledge v. Jefferson County , supra ; see Barry & Sons, Inc. v. Instinct Productions, LLC., 15 A.D.3d 62, 788 N.Y.S.2d 71 [1st Dept. 2005] ).
Consequently, the Administrator here, as the personal representative who has received letters of administration of a decedent's estate, is the only party who is authorized to commence a survival action to recover damages for personal injuries sustained by the decedent or a wrongful death action to recover damages sustained by the decedent's distributees on account of her death ( Jordan v. Jordan, supra ; Shelley v. South Shore Healthcare , supra ; Estevez v. Tam , supra ; see Gulledge v. Jefferson County, supra ). The motion to amend the complaint to include the Proposed Plaintiffs as plaintiffs is therefore appropriately denied as patently without merit as they do not have standing and their joinder is unnecessary to protect their interests (see generally Stallsworth v. Stallsworth, 138 A.D.3d 1102, 30 N.Y.S.3d 661 [2d Dept. 2016] ). Accordingly, the part of the motion to amend the complaint that seeks to: name Frometa and the children as new individual plaintiffs; amend the original causes of action; and allege new individual derivative causes of action on their behalf against the Bus Company is denied ( Jordan v. Jordan , supra ; see generally Cahill v. Jordan Home Services, LLC , 145 A.D.3d 847, 44 N.Y.S.3d 133 [2d Dept. 2016] ). Furthermore, based on the same reasoning, that part of the motion that seeks to permit the Proposed Plaintiffs to allege the same claims against the Proposed City Defendants is also denied.
The part of the Administrator's motion [Mot. Seq.2], made pursuant to CPLR 3025, for an order permitting the Administrator to file (or deem filed) and serve the Proposed Amended Complaint adding claims on behalf of the Administrator against the Proposed City Defendants.
As previously stated, while leave to amend pleadings "shall be freely given" ( CPLR 3025[b] ), it may be denied where the proposed amendment is palpably insufficient as a matter of law or is totally devoid of merit (see Grant v. Brooklyn Center for Rehabilitation & Residential Health Care, LLC. , 153 A.D.3d 798, 60 N.Y.S.3d 352 [2d Dept. 2017] ; Jenal v. Brown , 80 A.D.3d 727, 916 N.Y.S.2d 780 [2d Dept. 2011] ). A motion to amend a complaint or other pleading to add a cause of action or theory of recovery that is time-barred under the applicable statute of limitations is patently devoid of merit ( Grant v. Brooklyn for Rehabilitation & Residential Health Care, LLC., supra ; Whitfield-Ortiz v. Department of Educ. Of City of New York, supra ; Watkins-Bey v. City of New York, 174 A.D.3d 553, 105 N.Y.S.3d 494 [2d Dept. 2019] ).Hence, where a motion to amend a complaint to add a cause of action to recover damages for wrongful death is made after the statute of limitations had expired, more than two years after the decedent's death (see EPTL 5—4.1 [1] ), the proposed amendment is devoid of merit ( Grant v. Brooklyn Center for Rehabilitation & Residential Health Care, LLC., supra ). Here, the defendants argue that the statute of limitations expired years ago on the causes of action alleged in the Proposed Amended Complaint against the Proposed City Defendants and, as such, the motion to amend must be denied as patently without merit. Of note, the Administrator provides no justification for the failure to implead the Proposed City Defendants in the Original Complaint.
In seeking to assert the statute of limitations as a bar to a claim, a moving defendant bears the initial burden of demonstrating, prima facie , that the time within which to commence the cause of action has expired ( Flintlock Construction Services, LLC. v. Rubin, Fiorella & Friedman, LLP. , 188 A.D.3d 530, 136 N.Y.S.3d 13 [1st Dept. 2020] ; Collins Bros. Moving Corp. v. Pierleoni, 155 A.D.3d 601, 63 N.Y.S.3d 478 [2d Dept. 2017] ). If the moving defendant satisfies its burden, the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations is tolled or is otherwise inapplicable ( Collins Bros. Moving Corp. v. Pierleoni, supra ; see Jacobson Development Group, LLC v. Yews, Inc., 174 A.D.3d 868, 106 N.Y.S.3d 119 [2d Dept. 2019] ).
As the Proposed City Defendants are entities of the City of New York, the statute of limitations which governs the claims at issue here is set forth in General Municipal Law 50-i(1). The statute provision provides, in relevant part:
"No action shall be prosecuted or maintained against a city for personal injury [or] wrongful death alleged to have been sustained by reason of the negligence or wrongful act of such city. unless, (a) a notice of claim shall have been made and served upon the city and (c) the action shall be commenced within one year and ninety days after the happening of the event upon which the claim is based; except that wrongful death actions shall be commenced within two years after the happening of the death".
Hence, to warrant the grant of the motion, the Administrator must show that that the action is timely commenced, and the Proposed City Defendants received a timely notice of claim, or that leave to file a late notice of claim is justified.
Statute of Limitations on Wrongful Death Claim:
Here, the decedent died approximately four and one-half years ago, on October 14, 2016. Under the Estates, Powers and Trusts Law (EPTL), the personal representative of the decedent, here the Administrator, is empowered to bring a wrongful death claim and has two years from the date of death to commence an action ( General Municipal Law 50-i(1) ; see EPTL 5—4.1 ). Applying these limitations to the facts presented, without a toll, the statute of limitations to allege the claims set forth in the Proposed Amended Complaint against the Proposed City Defendants expired at least by October 14, 2018, well over two years ago. While this action was timely commenced against the original defendants on February 2, 2018, this motion to amend to implead the Proposed City Defendants was filed August 17, 2020, almost two years beyond the expiration of the statute of limitations and approximately four years after death. As such, without a toll, the Administrator's claims against the Proposed City Defendants are clearly time-barred.
The EPTL defines personal representative as "a person who has received letters to administer the estate of a decedent" (EPTL 1—2.13 ) (Machado v. Gulf Oil L.P., supra).
Movant points out that two of the distributes are infants and argues that therefore the Infant Children, as distributees, may have the benefit of the toll provided by CPLR 208 in the wrongful death action ( Hernandez v. New York City Health and Hospitals Corp. , supra ; Machado v. Gulf Oil, L.P., supra ). CPLR 208 provides, in relevant part that "[i]f a person entitled to commence an action is under a disability because of infancy ... at the time the cause of action accrues ..., if the time otherwise limited is less than three years, the time [within which the action must be commenced] shall be extended by the period of disability" ( Machado v. Gulf Oil, L.P., supra ).
The First Department recently examined the application of the infancy toll to a wrongful death action in Machado v. Gulf Oil, L.P., 195 A.D.3d 26, 146 N.Y.S.3d 66 (1st Dept. 2021). The court found that, in the limited circumstance where the infant is the sole distributee of a decedent's estate, the toll of CPLR 208 applies to a wrongful death claim until the earliest moment there is a personal representative who can bring the action by appointment of a guardian of the property of the infant distributee or majority of a distributee, whichever occurs first ( Id. ; Hernandez v. New York City Health and Hospitals Corp. , supra ). Of note, however, the court distinguished such a situation, citing the Court of Appeals decision in Hernandez v. New York City Health and Hospitals Corp., supra , from the circumstances present in this case, where the infant children are not the "sole distributees" of the decedent's estate and there are adult distributees who are eligible to bring the claims. Under those facts, the statutory and policy considerations concerning an infant's disability from receiving letters of administration that support the application of the infancy toll to a wrongful death claim are not present.
Here, Frometa, as the decedent's spouse, and the decedent's eldest child were both distributees of an age and competency to acquire the letters of administration and, more importantly, timely letters of administration were in fact acquired by Frometa. Under the circumstances, therefore, the policy and statutory considerations warranting the application of the toll as discussed in Machado v. Gulf Oil, L.P. are not present here, and the Proposed Plaintiffs are not entitled to a toll based on the infancy of the two infant children.
While the application of the principles expressed in Machado v. Gulf Oil, L.P. to the facts presented here is therefore unwarranted, even applying the infancy toll, the action against the Proposed City Defendants is nonetheless time-barred ( Id. ; see Hernandez v. New York City Health and Hospitals Corp. , supra ; Heslin v. County of Greene, supra ). Any infancy toll of CPLR 208 in this action terminated upon the appointment of the Administer as any disability ended (see Machado v. Gulf Oil, L.P., supra ; see Kealos v. State, 150 A.D.3d 1211, 55 N.Y.S.3d 411 [2d Dept. 2017] ). Consequently, when the Administrator was issued limited Letters of Administration on December 19, 2017, the two-year statute of limitations to bring a wrongful death claim against the Proposed City Defendants began to run ( Baker v. Bronx Lebanon Hospital Center , 53 A.D.3d 21, 859 N.Y.S.2d 35 [1st Dept. 2008] ; Hernandez v. New York City Health & Hospitals Corp., supra ). The statute of limitations for the lawsuit therefore expired on December 19, 2019, well before this motion was filed on August 17, 2020. Hence, the Administrator's present attempt to pursue a wrongful death claim against the Proposed City Defendants is well beyond the expiration of the statute of limitations under any and all of the alleged variables.
Juan B. Frometa was issued limited Letters of Administration and appointed Administer of the decedent's estate on December 19, 2017. Hence the Administrator was the proper party with standing to commence this litigation on February 2, 2018, and in doing so, the interests of the infant plaintiffs, the adult child, and the spouse are protected as designed by the provisions of the EPTL.
Statute of Limitations on the Cause of action for Survivorship (pain and suffering)
The cause of action based on survivorship (conscious pain and suffering) founded on negligence, is time-barred because the Administrator was appointed and failed to timely commence the action. Of note, the infancy toll has no relevancy as the necessary connection between infant distributees in a personal injury action brought on behalf of the deceased under EPLT 11-3.2(b) is lacking as such a claim redresses a wrong suffered by the deceased, not the distributees. Unlike a wrongful death claim that that directly compensates a decedent's distributees for their own damages, a personal injury claim is designed to compensate the decedent for injuries suffered and is personal to the deceased—in other words, it is a claim assumed by the estate. Hence the rationale underlying the court taking into account the infancy of a sole distributee because the wrongful death claim belongs to and is for the "sole benefit" of the distributee does not apply in the context of a tort that belongs to the estate and seeks to redress a wrong suffered by the deceased, not the distributees ( Heslin v. County of Green , supra ; Machado v. Gulf Oil, L.P., supra ; see Vinogradov v. Bay Plaza Apts Co., LLC, 189 A.D.3d 1663, 135 N.Y.S.3d 276 [2d Dept. 2020] ). Here, the Administrator was timely appointed and the interests of the estate were protected. Based on the facts presented, therefore, the time for the Administrator to pursue such a cause of action against the Proposed City Defendants has expired and the claim is time-barred.
Relation-back doctrine.
In an attempt to avoid the statute of limitations bar to the proposed claims, the Administrator argues that the "relation-back doctrine" permits the pursuit of the causes of action against the Proposed City Defendants based on the Original Complaint ( CPLR 202(b) ). In essence, the Administrator contends that serving and naming the Bus Company as a defendant in this action in the Original Complaint should be considered tantamount to serving and naming the Proposed City Defendants with the Original Complaint because the two are "united in interest" such that service on one equals service on both in terms of statute of limitation considerations .
This argument does not resolve the notice of claim requirement.
The relation-back doctrine, now codified in CPLR 203(f), provides that a "claim asserted in an amended pleading is deemed to have been interposed at the time the claims in the original pleading were interposed, unless the original pleading does not give notice of the transactions [or] occurrences ... to be proved pursuant to the amended pleading" ( CPLR 203 [f] ). As to a proposed amendment to the complaint to add additional defendants, a claim asserted against a new party will relate back to the date upon which the plaintiff claims was previously interposed against the original named defendant, despite the fact that the new party was not named in the originally served process, but only if: (1) both claims arose out of the same conduct, transaction or occurrence; (2) the new party is "united in interest" with the original defendant and thus can be charged with notice of the initiation of the action without being prejudiced in maintaining a defense on the merits; and (3) the new party knew or should have known that but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against him as well ( Morel ex rel Hernandez v. Schenker , 64 A.D.3d 403, 882 N.Y.S.2d 112 [1st Dept. 2009] ; see Buran v. Coupal , 87 N.Y.2d 173, 638 N.Y.S.2d 405, 661 N.E.2d 978 [1995] ). The linchpin of the relation-back doctrine is notice to the defendant within the applicable limitations period of the claims that are to be alleged against it ( Gaspari v. Sadeh , 61 A.D.3d 405, 876 N.Y.S.2d 46 [1st Dept. 2009] ; Buran v. Coupal, supra ).
The Administrator bears the burden of showing that the action is permitted to continue under the relation-back doctrine ( Fasce v. Smithem , 188 A.D.3d 1542, 136 N.Y.S.3d 498 [3d Dept. 2020] ). The parties here agree that the circumstances in this case satisfy the first prong of the test.
In contrast, the Administrator fails to meet his burden of showing that the second prong, that the new party is wholly "united in interest" with the original defendant, is satisfied here. Of note, the Proposed City Defendants (City of New York, the New York City Board of Education, and the New York City Department of Education Office of Pupil Transportation) were not named in this action when it was commenced years ago and the only named defendants in this case are an independent bus company and its driver. As a foundation for holding the Proposed City Defendants liable for the decedent's injuries and death, the Administrator alleges in the Proposed Amended Complaint that the Proposed City Defendants are vicariously liable for the defendant driver's negligence, and are liable based on principles of negligent hiring, supervision, and training. The Administrator argues that that the Proposed City Defendants are "united in interest" with the Bus Company based on these claims and the fact that some of the Proposed Defendants are supposedly named as additional insureds on the Bus Company's insurance policy.
The classic test for determining unity of interest is that if the interest of the parties in the subject-matter is such that they stand or fall together and that judgment against one will similarly affect the other, then they are united in interest ( Seeler v. AMA Consulting Engineers, P.C., 190 A.D.3d 508, 135 N.Y.S.3d 654 [1st Dept. 2021] ). Importantly, the requirement of unity of interest is more than a notice provision because the test is whether "the interest of the parties in the subject-matter is such that they stand or fall together and that judgment against one will similarly affect the other" ( Higgins v. City of New York , 144 A.D.3d 511, 43 N.Y.S.3d 1 [1st Dept. 2016] ). Unity of interest will not be found unless there is some relationship between the parties giving rise to the complete vicarious liability of one for the conduct of the other ( Id. ; see Mondello v. New York Blood Ctr.—Greater NY Blood Program , 80 N.Y.2d 219, 590 N.Y.S.2d 19, 604 N.E.2d 81 [1992] ). Hence, unity of interest fails if there is a possibility that the new defendants may have a defense unavailable to the original defendants ( Higgins v. City of New York, supra) .
Of note, there is no allegation that the Proposed City Defendants were co-owners of the private bus company, or that the Bus Company and the Proposed City Defendants shared office space, tax identification numbers, or employee rolls. In fact, it is undisputed that the Proposed City Defendants are separate and discrete city agencies even from each other (see Seeler v. AMA Consulting Engineers, P.C., supra ).
Based on the record, although the Proposed City Defendants' and the Bus Company's defenses to the litigation may overlap, the Proposed City Defendants have defenses to the causes of action alleged against them (vicarious liability and negligent hiring, supervision, and training), that are unavailable to the original defendants. As for the Administrator's claim that the Proposed City Defendants are vicariously liable for the Bus Company's driver's negligence in transporting students, without more, it lacks merit as the Court of Appeals has held that there is no inherent basis for finding the City vicariously liable for the liability of an independent contractor bus company that transports school children ( Chainani v. Board of Education of City of New York , 87 N.Y.2d 370, 639 N.Y.S.2d 971, 663 N.E.2d 283 [1995] ). Here, nothing presented by the Administrator raises an issue of fact as to the applicability of any exception to the general rule of nonliability for the negligent act of an independent contractor ( Hill v. City of New York , 151 A.D.3d 1032, 58 N.Y.S.3d 466 [2d Dept. 2017] ), and the Proposed City Defendants' defenses based on this principle, as well as others, do not raise and fall with the Bus Company's defenses in the action.
Similarly, the Proposed City Defendants' defenses to the cause of action of negligent hiring, supervision, and training are separate and distinct from any defense available to the Bus Company as the acknowledged employer of the defendant driver. Once again, the Proposed City Defendants were not co-owners of the private bus company, did not share office space, tax identification numbers, or employee rolls and are separate and discrete city agencies even from each other (see Seeler v. AMA Consulting Engineers, P.C., supra ). There is no showing in the record that these proposed defendants in any way participated in the hiring or training of the defendant driver. The mere fact that some of the Proposed City Defendants may have been named as additional insureds on a Bus Company Policy is insufficient, standing alone, to generate a question as to whether the city agencies named in the policy, or the agencies that were not named, are owners of the relevant bus or employers of the driver (see Stefansky v. City of New York , 2016 WL 11703545 [Sup. Ct. New York County 2016] ; see Watkins-Bey v. MTA Bus Co., 174 A.D.3d 553, 105 N.Y.S.3d 494 [2d Dept. 2019] ). Under the circumstances, the Proposed City Defendants' defenses to the cause of action, including the lack of any relationship to the defendant driver's employment and training, do not rise and fall with the Bus Company's defenses in the personal injury action (see Bailly v. Rudolf Steiner School, 293 A.D.2d 259, 741 N.Y.S.2d 197 [1st Dept. 2002] ). Based on the motion papers, the Administrator fails to satisfy his burden under the second prong of showing the Proposed City Defendants and the Bus Company are united in interest ( Durstenberg v. Electrolux Home Prods. , Inc., 181 A.D.3d 444, 120 N.Y.S.3d 313 [1st Dept. 2020] ).
In any event, the Administrator also fails to satisfy the third prong of the relation-back test. On the record, there is no basis for finding that the Proposed City Defendants knew or should have known within the limitations periods that, but for a mistake by the Administrator as to the identity of the proper parties, the action would have been brought against the additional party as well (see Buran v. Coupal, supra ; Doe v. HMO—CNY, 14 A.D.3d 102, 785 N.Y.S.2d 813 [4th Dept. 2004] ). In fact, there is no evidence of a mistake by the Administrator as to the identity of the proper parties or a mistake in the deliberate decision by the Administrator's prior attorneys not to sue the Proposed City Defendants. The Administrator was well aware of the identity of the Proposed City Defendants, participated in a 50-h hearing, and understood the circumstances of the Accident almost immediately after the decedent died. Armed with this information and represented by attorneys, the Administrator declined to pursue a claim against the City or its agencies and now fails to provide the court any explanation for that decision (see Durstenberg v. Electrolux Home Prods., Inc., supra ). As the Administrator intentionally declined to allege a claim against a party known to be potentially liable, there has been no mistake, and the Administrator should not be given a second opportunity to assert that claim after the limitations period has expired ( Losner v. Cashline, L.P. , 303 A.D.2d 647, 757 N.Y.S.2d 91 [2d Dept. 2003] ; see Buran v. Coupal, supra ).
Accordingly, the relation-back doctrine is inapplicable to this matter and the causes of action sought to be alleged against the Proposed City Defendants by the Administrator are time-barred. In addition, based on the findings herein, that part of the motion that seeks an order granting the Administrator leave to: serve a proposed amended notice of claim, nunc pro tunc ; serve a late notice of claim; or leave to renew this portion of the motion upon appearance by the Proposed City Defendants is therefore denied as is moot.
Notice of Claim
Even were the motion not denied for the reasons set forth above, however, under all circumstances, the Administrator's motion is denied based on the failure to serve timely notice of claim on the Proposed City Defendants, and failure to seek leave to file a late notice of claim, pursuant to General Municipal Law 50-e(5) within the applicable statute of limitations ( Yessenia D. v. New York City Health & Hospitals Corps., 139 A.D.3d 454, 29 N.Y.S.3d 788 [1st Dept. 2016] ). Service of a notice of claim after accrual of the claim is a condition precedent to the commencement of a tort action against a public corporation or any employee thereof ( Id. ; see Education Law 3813 [2] ; General Municipal Law 50-e [1] [a] ; 50-i [1] [a]; Cassidy v. Riverhead Central School District, 128 A.D.3d 996, 11 N.Y.S.3d 102 [2d Dept. 2015] ).
To the extent that the Administrator argues that the original notice of claim was sufficient to place the Proposed City Defendants on notice of the causes of action alleged in the Proposed Amended Complaint, the contention lacks merit. The original notice of claim was served on the City and another agency which is not a proposed defendant in this action. Furthermore, the original notice and the connected 50-h hearing, which took place many years ago, were solely based on allegations of negligent design of the relevant intersection and roadway. This notice was patently insufficient to place the City, and the other uninvolved agencies, on notice of claims based on vicarious liability for the negligence of a driver employed by an independent bus company or the negligent supervision, training, and hiring of said driver (see Pierson v. City of New York, 56 N.Y.2d 950, 453 N.Y.S.2d 615, 439 N.E.2d 331 [1982] ).
Furthermore, the Administrator's request for leave to serve a late notice of claim is denied as the motion for leave to file a late notice of claim, pursuant to General Municipal Law 50-e(5), is outside of the applicable statute of limitations and, as such, the court is without jurisdiction to granted the requested relief ( Townsend v. City of New York, 173 A.D.3d 809, 99 N.Y.S.3d 681 [2d Dept. 2019] ; Yessenia D v. New York Health & Hospitals Corp., supra ).Where a party moves for such relief or to deem a late notice of claim timely served nunc pro tunc , after the allotted period has expired, the Supreme Court is without authority to grant such relief ( Yessenia D v. New York Health & Hospitals Corp., supra ; Cassidy v. Riverhead Cent. Sch. Dist., supra ; Watts v. City of New York, 186 A.D.3d 1574, 131 N.Y.S.3d 62 [2d Dept. 2020] ; see Flores v. Fraser, 159 A.D.3d 499, 69 N.Y.S.3d 804 [1st Dept. 2018] ). Accordingly, the Proposed Amended Complaint seeking to implead the Proposed City Defendants is patently without merit as the movant failed to timely serve a notice of claim or to timely seek leave to serve a late notice of claim, and the precondition to suing the Proposed City Defendants is not satisfied .
The application is also denied as the Administrator seeks leave to amend the notice of claim to assert a new theory of liability (Castillo v. Kings County Hosp. Ctr. , 149 A.D.3d 896, 897, 52 N.Y.S.3d 451 [2d Dept. 2017] ; Matter of Johnson v. County of Suffolk , 167 A. D. 3d 742, 90 N.Y.S.3d 84 [2d Dept. 2018]). Moreover, the Administrator fails to show a lack of prejudice to the Proposed City Defendants, warranting denial of the motion (see Matter of Atkinson v. New York City Health and Hospitals Corp. , 184 A.D.3d 528, 125 N.Y.S.3d 418 [1st Dept. 2020]).
In sum, all of the causes of action alleged on behalf of the Proposed Plaintiffs are devoid of merit as said plaintiffs lack standing. Similarly, the claims sought to be alleged by the Administrator against the Proposed City Defendants are without merit because they are time-barred and there was a failure to serve a timely notice of claim. Furthermore, it is undisputed that the proposed pleading does not seek to set forth a new cause of action on behalf of the Administrator against the Bus Company. As such, the entire Proposed Amended Complaint is completely devoid of merit, and the motion to serve the amended complaint is appropriately denied.
The Administrator's motion [Mot. Seq. 3], seeking an order granting the Administrator partial summary judgment as to liability against the Bus Company and dismissing the affirmative defense of comparable negligence.
A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie , that the defendant breached a duty owed to the plaintiff and that the defendant's negligence was a proximate cause of the alleged injuries ( Tsyganash v. Auto Mall Fleet Management, Inc. , 163 A.D.3d 1033, 83 N.Y.S.3d 74 [2d Dept. 2018] ; see Rodriguez v. City of New York , 31 N.Y.3d 312, 76 N.Y.S.3d 898, 101 N.E.3d 366 [2018] ). A plaintiff is no longer required to show freedom from comparative fault in establishing his or her prima facie case (see Rodriguez v. City of New York, supra ). Importantly, once this showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action ( Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ; Madeline D'Anthony Enterprises, Inc. v. Sokolowsky , 101 A.D.3d 606, 957 N.Y.S.2d 88 [1st Dept. 2012] ). Of note, where a defendant fails to oppose facts advanced on a motion for summary judgment, the facts as alleged in the movant's papers are deemed admitted as there is, in effect, a concession that no question of fact exists (see Kuehne & Nagel, Inc. v. Baiden , 36 N.Y.2d 539, 369 N.Y.S.2d 667, 330 N.E.2d 624 [1975] ; see also Funk v. Seligson, Rothman & Rothman, Esqs., 165 A.D.3d 429, 85 N.Y.S.3d 48 [1st Dept. 2018] ).
The Administrator sets forth a prima facie showing of entitlement to partial summary judgment as to liability against the Bus Company ( Drummond v. Perez , 146 A.D.3d 645, 45 N.Y.S.3d 441 [1st Dept. 2017] ; Ortiz v. Lynch , 105 A.D.3d 584, 965 N.Y.S.2d 84 [1st Dept. 2013] ; Garcia v. Verizon NY, Inc. , 10 A.D.3d 339, 340, 781 N.Y.S.2d 93 [1st Dept. 2004] ; see Rozon v. Rosario, 144 A.D.3d 597, 42 N.Y.S.3d 27 [1st Dept. 2016] ). A violation of the Vehicle and Traffic Law (VTL) constitutes negligence per se ( Drummond v. Perez , supra ; see Davis v. Turner, 132 A.D.3d 603, 20 N.Y.S.3d 2 [1st Dept. 2015] ; Flores v. City of New York , 66 A.D.3d 599, 888 N.Y.S.2d 27 [1st Dept. 2009] ). Here, the criminal conviction, the Administrative Judge findings, and the defendant driver's own testimony establish, prima facie, that the defendant driver violated provisions of the VTL and was negligent in hitting the decedent when attempting to make a right hand turn from the center lane (see VTL 1160 ; VTL 1146(a) ; VTL 1163 ; Simon v. Rent-A-Center East, Inc., 180 A.D.3d 1100, 120 N.Y.S.3d 388 [2d Dept. 2020] ). Furthermore, it is uncontroverted that the decedent was crossing an intersection with the light in her favor, and the defendant driver never saw her when defendants' vehicle struck her while making an illegal right turn, establishing the Administrator's entitlement to judgment on liability as a matter of law ( Curl v. Schiffman , 183 A.D.3d 415, 121 N.Y.S.3d 601 [1st Dept. 2020] ; Rozon v. Rosario , supra ; Beamud v. Gray , 45 A.D.3d 257, 844 N.Y.S.2d 269 [1st Dept. 2007] ). Having presented evidence of the Bus Company's negligence, the Administrator need not demonstrate the decedent's freedom from comparative fault in order to obtain partial summary judgment of liability against the negligent defendant ( Rodriguez v. City of New York, supra ).
In opposition, the Bus Company does not raise a question of material fact ( Villaverde v. Santiago—Aponte , 84 A.D.3d 506, 922 N.Y.S.2d 369 [1st Dept. 2011] ). Simply put, the defendant driver's own testimony proves that there is no triable issue as to whether there was a nonnegligent explanation on his part for the accident as he confirms that there was contact between the bus and the decedent, the decedent had the light in her favor when the accident occurred, he made a turn that violated the VTL, and never saw the decedent before hitting her ( Curl v. Schiffman, supra ). His admission of violation a VTL statute is prima facie proof of negligence ( Castro v. Hatim , 174 A.D.3d 464, 106 N.Y.S.3d 24 [1st Dept. 2019] ), and this is true even without the added proof of a guilty plea resulting in a criminal conviction (see Davis v. Turner , supra ; Alamo v. McDaniel , 44 A.D.3d 149, 841 N.Y.S.2d 477 [1st Dept. 2007] ). Furthermore, his negligence is confirmed by the submitted video and his statement that he never saw the decedent ( Higashi v. M & R Scarsdale Restaurant, LLC. , 176 A.D.3d 788, 111 N.Y.S.3d 92 [2d Dept. 2019] ). Accordingly, the Administrator is granted partial summary judgment as to liability.
In terms of that part of the motion seeking to dismiss the affirmative defense of comparative negligence, even though a plaintiff is no longer required to establish his or her freedom from comparative negligence to be entitled to summary judgment on the issue of liability, the issue of a plaintiff's comparative negligence may be decided in the context of a summary judgment motion where, as here, the plaintiff moved for summary judgment dismissing a defendant's affirmative defense of comparative negligence (see Higashi v. M & R Scarsdale Rest. , LLC , supra ; Wray v. Galella , 172 A.D.3d 1446, 1447, 101 N.Y.S.3d 401 [2d Dept. 2019] ; see also Hai Ying Xiao v. Martinez , 185 A.D.3d 1014, 126 N.Y.S.3d 369 [2d Dept. 2020] ). The Administrator bears the burden of establishing prima facie that the decedent was free from comparative negligence ( Higashi v. M & R Scarsdale Rest. , LLC , supra ; Wray v. Galella , supra ; Hai Ying Xiao v. Martinez , supra ; see Paget v. PCVST-DIL, LLC, 186 A.D.3d 1162, 132 N.Y.S.3d 2 [1st Dept. 2020] ).
Here, the Administrator shows through the defendant driver's testimony and the video that the decedent was crossing with the light and at or near the cross-walk when she was stuck by the Bus Company's vehicle. As such, the Administrator makes a prima facie showing that the decedent was not comparatively negligent in causing the accident. In opposition, the Bus Company fails to generate an issue of fact. As the defendant driver never saw the decedent, based on the record, there is no evidence to generate an issue of fact as to the decedent's comparative negligence in the situation ( Higashi v. M & R Scarsdale Rest. , LLC., supra ; Wray v. Galella , supra ; Maliakel v. Morio , 185 A.D.3d 1018, 129 N.Y.S.3d 99 [2d Dept. 2020] ).
To the extent that the Bus Company argues that the motion for summary judgment is premature because the depositions of the six witness on the Witness List have not been conducted, the argument is rejected. The Witness List was produced six months ago, and as of, yet the Bus Company submits no evidence of the efforts to locate and depose such witnesses, or the alleged value of their testimony. Of note, the parties were given until late December to submit additional papers, and that submission date was thereafter, at the request of the Bus Company, adjourned to January 2021. As the Bus Company, to date, failed to offer an evidentiary basis to suggest that discovery may lead to relevant evidence, or that facts essential to opposing the motion were exclusively in the Administrator's knowledge and control (see Maliakel v. Morio, supra ) the motion is denied. The mere hope that a party might be able to uncover some evidence during the discovery process is insufficient to deny summary judgment ( Tavarez v. Herrasme , 140 A.D.3d 453, 31 N.Y.S.3d 871 [1st Dept. 2016] ; see Mirza v. Tribeca Automotive Inc., 189 A.D.3d 448, 137 N.Y.S.3d 13 [1st Dept. 2020] ; compare, Simmons v. Bergh , 192 A.D.3d 547, 140 N.Y.S.3d 703 [1st Dept. 2021] ).
The court has considered the additional contentions of the parties not specifically addressed herein. To the extent that any relief requested by either party was not addressed by the court, it is hereby denied. Accordingly, it is hereby
ORDERED that the part of the motion of plaintiffs JUAN B. FROMETA as Administrator for the Estate of CARMEN ALTAGRACIA PUELLO, deceased, and JUAN B. FROMETA, individually (jointly "the Administrator") [Mot. Seq. 2], made pursuant to CPLR 3025, for an order permitting the filing of (or deem filed) and serving of the proposed Supplemental Summons and Amended Verified Complaint ("the Proposed Amended Complaint") to include proposed plaintiffs "Juan B. Frometa as Father and Natural Guardian of J.F. an Infant, N.F. an Infant, and Connie Frometa" ("the Proposed Plaintiffs") as additional plaintiffs in this action, and to allege claims on behalf of the Proposed Plaintiffs against current defendants MAR-CAN TRANSPORTATION COMPANY, INC., and AQUILES R. SANCHEZ ("the Bus Company") and against proposed new additional defendants New York City Board of Education, the City of New York, and New York City Department of Education Office of Pupil Transportation ("the Proposed City Defendants") is denied; and it is further
ORDERED that the part of the motion of the Administrator [Mot. Seq. 2] that seeks to serve the Proposed Amended Complaint to allege claims on behalf of the Administrator as against the Proposed City Defendants is denied; and it is further
ORDERED that the part of the motion of the Administrator [Mot. Seq. 2] that seeks an order granting the Administrator leave to serve a proposed amended notice of claim, nunc pro tunc , upon the Proposed City Defendants or, in the alternative, granting the Administrator leave to renew this portion of the motion upon appearance by the Proposed City Defendants is denied; and it is further
ORDERED that, in sum, the Proposed Amended Complaint is therefore completely devoid of merit and the Administrator's motion sequence number 2 is denied in its entirety; and it is further
ORDERED that the motion of the Administrator [Mot. Seq. 3], made pursuant to CPLR 3212, for an order granting the Administrator partial summary judgment as to liability and dismissing the affirmative defense of comparative negligence as against the Bus Company is granted.
The foregoing constitutes the Decision/Order of the court.