Opinion
Index 611959-2016
07-12-2021
JEFFREY PANARELLO, Plaintiff, v. TOWN OF HUNTINGTON HART BUS COMPANY, HUNTINGTON AREA RAPID TRANSIT, TOWN OF HUNTINGTON AND COUNTY OF SUFFOLK AND "JOHN DOE" TRUE NAME BEING UNKNOWN, PERSON INTENDED BEING THE OPERATOR OF THE BUS ON MAY 11, 2015 AT APPROXIMATELY 1:30 PM ON LARKFIELD ROAD AT THE INTERSECTION WITH PULASKI ROAD, EAST NORTHPORT, NY, Defendants.
Jeffrey Panarello Plaintiff Pro Se Gerber Ciano Kelly Brady LLP By: Robert W. Berbenich, Esq. Attorneys for Defendants
Unpublished Opinion
MOTION DATE: 12/04/20
SUBMITTED: 03/03/21
Jeffrey Panarello Plaintiff Pro Se
Gerber Ciano Kelly Brady LLP By: Robert W. Berbenich, Esq. Attorneys for Defendants
DAVID T. REILLY JUSTICE OF THE SUPREME COURT
Upon the reading and filing of the following papers in this matter: (1) Defendants' Notice of Motion dated November 6, 2020 and supporting papers; (2) Plaintiff's "Affirmation in Opposition" (not efiled or dated, see NYSCEF Doc. No. 66); and (3) Defendants' Affirmation in Reply dated December 3, 2020 and supporting papers (and after hearing counsel in support and in opposition to the motion) it is, ORDERED that the motion by defendants, Town of Huntington Hart Bus Company, Huntington Area Rapid Transit, the Town of Huntington and "John Doe" (collectively the Huntington defendants), seeking an Order granting renewal of its prior motion dismissing the plaintiff's complaint pursuant to CPLR 3211 and 3212, which was denied by Order of the Court dated June 8, 2020, is granted, and upon renewal the motion is granted and the plaintiff's complaint is dismissed.
Plaintiff commenced this action seeking money damages for personal injuries sustained on May 11, 2015 when, as a passenger on a Town of Huntington Hart Bus, he was allegedly caused to fall from his seat and suffer personal injuries. In his complaint, and as amplified by his testimony during a deposition held pursuant to Public Authorities Law §1276, plaintiff maintains that he was seated behind the bus driver having a conversation with another passenger when the incident occurred. Plaintiff only recalls being awoken by paramedics as they were attempting to remove him from the floor of the bus and into a waiting ambulance.
By way of procedural history, on October 10, 2017 the parties appeared in Court for the purpose of completing a Preliminary Conference Order. Within that Order the parties scheduled plaintiff's deposition for January 4, 2018. According to the defendants, plaintiff adjourned the date of his deposition several times and it was finally rescheduled for April 27, 2019. Plaintiff again failed to appear, indicating that he was ill. The deposition was rescheduled for June 5, 2019. On that date defendants maintain that plaintiff failed to appear in a condition fit to testify. Stated otherwise, defendants maintain that plaintiff appeared, but was unable to answer simple questions after consuming three types of pain medication several hours prior to the deposition. The Court directed the parties to appear in Court on June 12, 2019 for a scheduled compliance conference.
On June 12, 2019 plaintiff appeared in Court with his attorney, however, it became evident to the attorneys and the Court that plaintiff was unable to proceed with the deposition due to his lack of capacity. The Court directed plaintiff to, within sixty (60) days of that date, secure a letter from his primary care physician and/or pain management doctor regarding plaintiff's medicinal regiment with an indication as to when the plaintiff might be expected to proceed with the deposition. The matter was adjourned to August 14, 2018. It is sufficient to state that the Court never received such communication from the plaintiff. At a subsequent compliance conference it is the Court's recollection that it suggested that counsel for the plaintiff aid in the commencement of a Mental Hygiene Law Article 81 proceeding before the Guardianship Part of the Court to determine if a guardian should be appointed for plaintiff. At around the same time plaintiff's counsel submitted a motion to be relieved as counsel in this action.
On November 12, 2019 plaintiff's motion to discontinue the guardianship proceeding was granted (Horowitz, J.). In light of that determination this Court indicated to the attorneys here that the motion to withdraw as counsel and the defendants' motion to dismiss would proceed to submission. In addition, the Court attempted to engage the parties in settlement negotiations, however, those discussions proved fruitless.
On June 8, 2020 the Court denied the Huntington defendants' motion to dismiss the plaintiff's complaint pursuant to CPLR 3211 and 3212 stating,
To the extent that defendants' seek an Order granting them summary judgment, a party moving for such relief must make a prima facie showing of entitlement to judgment as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316 [1985]). "[A] party does not carry its burden in moving for summary judgment by pointing to gaps in its opponent's proof, but must
affirmatively demonstrate the merits of its claim or defense" (George Larkin Trucking Co. v Lisbon Tire Mart, 185 A.D.2d 614, 615, 585 N.Y.S.2d 894 [4th Dept 1992]). If the moving party meets this burden, the burden then shifts to the opposing party, who must demonstrate evidence of the existence of a material issue of fact (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 [1986]; Zuckerman v City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 [1980]). The failure of the moving party to make this prima facie showing requires denial of the motion (Winegrad v New York Univ. Med. Ctr., supra). Since the court's function on such a motion is to determine whether issues of fact exist, not to resolve issues of fact or to determine matters of credibility, the facts alleged by the opposing party and all inferences that may be drawn are to be accepted as true (see Roth v Barreto, 289 A.D.2d 557, 735 N.Y.S.2d 197 [2d Dept 2001]; O'Neill v Town of Fishkill, 134 A.D.2d 487, 521 N.Y.S.2d 272 [2d Dept 1987]).
In support of their application the defendants submit, among other things, a copy of the plaintiff's pre-claim hearing stenographic minutes and an affidavit of the bus driver, Mario Corvera. According to that affidavit, Mr. Corvera states that he was operating the bus northbound on Larkfield Road at the time of the incident when a vehicle cut in front of him. He avers that he depressed the brakes with moderate pressure to avoid an accident. He states that the bus did not actually stop as he was able to slow the bus in a non-violent manner. Mr. Corvera further maintains that the bus was in good working order, was equipped with seat belts and had no mechanical issues.
The Court subsequently denied the application stating that defendant had not sufficiently established the "emergency doctrine" such that the motion to dismiss should be denied. However, given the well-documented issues regarding the deposition of the plaintiff, outlined in this Court's prior decisions, the Huntington defendants now move for renewal based on the fact that plaintiff's deposition has now been completed.
A motion for leave to renew must be based upon new facts that were unavailable at the time of the original motion, and that would change the prior determination (see CPLR 2221[e][2]; Yunatanov v Stein, 69 A.D.3d 708, 893 N.Y.S.2d 569 [2d Dept 2010]; Ramirez v Khan, 60 A.D.3d 748, 874 N.Y.S.2d 257 [2d Dept 2009]; Lardo v Rivlab Transp. Corp., 46 A.D.3d 759, 848 N.Y.S.2d 337 [2d Dept 2007]; Boreanaz v Facer-Kreidler, 2 A.D.3d 1481, 770 N.Y.S.2d 516 [4th Dept 2003]). Although a court has discretion to grant renewal, in the interest of justice, upon facts that were known to the movant at the time the original motion was made, it may not exercise that discretion unless the movant establishes a reasonable justification for the failure to present such facts on the prior motion (see CPLR 2221[e][3]; Williams v Nassau County Med. Ctr., 37 A.D.3d 594, 829 N.Y.S.2d 645 [2d Dept 2007]; Lattimore v Port Auth. of N.Y. & N.J., 305 A.D.2d 639, 760 N.Y.S.2d 224 [2d Dept 2003]; Sherman v Piccione, 304 A.D.2d 552, 757 N.Y.S.2d 112 [2d Dept 2003]). Moreover, a motion for leave to renew "is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation," or who failed to assert a legal theory due to a mistaken assumption that what was submitted was adequate (Matter of Weinberg, 132 A.D.2d 190, 210, 522 N.Y.S.2d 511 [1st Dept 1987], lv dismissed 71 N.Y.2d 994, 529 N.Y.S.2d 277 [1988]; see Branca v Department of Educ. of City of N.Y., 25 A.D.3d 485, 808 N.Y.S.2d 77 [1st Dept 2006], lv dismissed 7 N.Y.3d 899, 826 N.Y.S.2d 607 [2006]; Renna v Gullo, 19 A.D.3d 472, 797 N.Y.S.2d 115 [2d Dept 2005]).
Pursuant to CPLR 2221, the Court grants the application for leave to renew and, upon renewal, modifies the prior determination to the extent that the Huntington defendants' motion to dismiss/summary judgment is granted.
In support of the renewal application the Huntington defendants submit, among other things, a copy of the plaintiff's deposition transcript. The Court notes the extensive efforts made to secure plaintiff's deposition prior to the submission of the original application and attributes no fault to the Huntington defendants with respect to this delay. That being said, a review of the plaintiff's deposition transcript reveals that he remembers almost nothing of the incident which led to his alleged injuries, claiming only that he recalls sitting on the bus and later being placed on a stretcher by medical personnel.
In many respects the facts of this case mirror those in Mastrantonakis v Metro. Transp. Auth. (170 A.D.3d 823, 96 N.Y.S.3d 250 [2d Dept 2019]). In that case, plaintiff alleged that she was caused to land on the floor of a public bus when the vehicle made a sharp turn. This assertion was belied by her prior testimony at a General Municipal Law §50-hearing and her deposition testimony. The appellate court found that plaintiff's opposition to the motion to dismiss raised a "feigned" issue of fact designed to avoid the consequences of her earlier testimony (Id.). In granting the defendants' motion to dismiss, that court stated,
To establish a prima facie case of negligence against a common carrier for injuries sustained by a passenger as a result of the movement of the vehicle, the plaintiff must establish that the movement consisted of a jerk or lurch that was unusual and violent. Moreover, a plaintiff may not satisfy that burden of proof merely by characterizing the stop as unusual and violent. There must be objective evidence of the force of the stop sufficient to establish an inference that the stop was extraordinary and violent, of a different class than the jerks and jolts commonly experienced in city bus travel and, therefore, attributable to the negligence of defendant. (Internal citations and quotation marks omitted).
This Court has re-examined the affidavit offered by the driver of the bus, Mario Corvera, and finds that the facts asserted in the affidavit would absolve the Huntington defendants of liability unless plaintiff could establish that the movement of the bus could be characterized as unusual or violent. As stated earlier, the plaintiff has offered no evidence which would support the inference that the bus stopped in an extraordinary or violent manner. Indeed, plaintiff testified at his deposition that he could not recall any specific details regarding the movement of the bus prior to the incident.
Under these circumstances the Court determines that defendants have established their entitlement to summary judgment and plaintiff has failed to sufficiently state a material issue of fact requiring a trial. Accordingly, the Huntington defendants' motion is granted and plaintiffs complaint is dismissed.
The foregoing constitutes the decision and Order of this Court.