Opinion
150092/15
05-31-2016
Patricia Riley, PATRICIA TAYLOR and LOTTIE MITCHELL, Plaintiffs, v. New York City Transit Authority, MANHATTAN AND BRONX SURFACE TRANSIT OPERATING AUTHORITY, MTA BUS COMPANY, ANNETTE VAZQUEZ, SIGMA TRANSPORTATION INC. and ANTHONY E. MCGUIRE, Defendants.
For Ambulette Defendants—Movants The Law Offices of Leon R. Kowalski By: Barry N. Greenberg, Esq. 12 Metrotech Center, 28th Floor Brooklyn, New York 11201-2837 (718) 250-1100 For Plaintiffs—Non-Movants Levine & Wiss, PLLC By: Ernest T. Lawson, Esq. 510 Hempstead Turnpike, Suite 206 West Hempstead, New York 11552 (516) 747-3222 For Transit Defendants—Non-Movants Lawrence Heisler, Esq. By: Peter Chang, Esq. 130 Livingston Street, 11th Floor Brooklyn, New York 11201 (718) 694-3987
For Ambulette Defendants—Movants The Law Offices of Leon R. Kowalski By: Barry N. Greenberg, Esq. 12 Metrotech Center, 28th Floor Brooklyn, New York 11201-2837 (718) 250-1100 For Plaintiffs—Non-Movants Levine & Wiss, PLLC By: Ernest T. Lawson, Esq. 510 Hempstead Turnpike, Suite 206 West Hempstead, New York 11552 (516) 747-3222 For Transit Defendants—Non-Movants Lawrence Heisler, Esq. By: Peter Chang, Esq. 130 Livingston Street, 11th Floor Brooklyn, New York 11201 (718) 694-3987 Michael D. Stallman, J.
In this personal injury action, plaintiffs allege that they were injured when the ambulette they were traveling in was rear-ended by a New York City Transit Authority bus. The driver and owner of that ambulette now move for summary judgment dismissing the action as against them, arguing that they cannot be held liable for plaintiffs' injuries as a matter of law. Plaintiff and the bus owner and operator defendants oppose the motion.
BACKGROUND
On October 7, 2013 at around 5 p.m., plaintiffs Patricia Riley, Patricia Taylor, and Lottie Mitchell were passengers in an ambulette operated by Anthony E. McGuire and owned by Sigma Transportation Inc. (Sigma) (collectively, Ambulette Defendants). An M15-SBS bus, owned by the New York Transit Authority and operated by Annette Vazquez, allegedly rear-ended plaintiffs' ambulette while it was stopped. (Greenberg Affirm. ¶ 4; Ex. A [Complaint] ¶¶ 29-39; Ex. B [McGuire Aff.] ¶¶ 2-4; Ex. C [Police Accident Report]; Chang Opp. Affirm., Ex. B [Supervisor's Accident/Crime Investigation Report]; Ex. C [Vazquez Aff.] ¶ 4.)
In a sworn affidavit submitted in support of the instant motion, McGuire states that on October 7, 2013 he was stopped on Second Avenue near East 117th Street when his ambulette was rear-ended "by a bus owned by defendant New York City Transit Authority and being operated by defendant Annette Vazquez." (McGuire Aff. ¶¶ 2-4.)
At a statutory hearing taken in a related action in which McGuire is a plaintiff, McGuire states that on October 7, 2013, he was driving down Second Avenue with his three passengers, and that it had "just finished raining so the ground was wet." (McGuire Statutory Hearing at 8:04-25.) McGuire states that right before he was rear-ended, he was in the second lane from the right-hand, bus-only lane near Second Avenue and East 117th Street, and that there was a car ahead of him making a right turn. (McGuire Statutory Hearing at 10:17-11:04.) McGuire states that he slowed down upon seeing the car in front of him making a right turn, and that when he was "about to step on the gas to go that's when I got rear ended by the bus." ( Id.)
McGuire testified in a statutory hearing on January 2, 2014 in relation to claims that would later be asserted in McGuire v New York City Transit Authority, Index No. 161054/2014. Although McGuire is also assigned to this Part, none of the parties in either case have sought joint trial or joint discovery.
Because plaintiffs' counsel was not present at McGuire's statutory hearing, an issue arises as to whether McGuire's transcript may be considered on this motion. ( 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].) Because McGuire is a party in this action, and the statutory hearing testimony is being offered against him, McGuire's hearing testimony may be considered in opposition to the Ambulette Defendants' motion, as admissions.
Vazquez states that on that day, she was operating an NYCTA bus on the M15-SBS route, going southbound on Second Avenue, and that it was raining and the roads were wet. (Vazquez Aff. ¶¶ 4-5.) Vazquez describes Second Avenue as having five lanes: "3 lanes of travel, 1 bus lane on the far right, which includes a turning lane, and one lane for parking on the left, which also includes a turning lane." (Id. ¶ 5.)
Vazquez states that at around Second Avenue and East 120th Street, her bus was traveling at about 17 miles per hour in the second lane to the right, and that an ambulette, which was traveling in the same direction in the lane to her left, moved in front of her with "about 2 car lengths" separating the two vehicles. (Id. ¶ 6.) By the time the vehicles had reached East 118th Street, "the ambulette sped up to about 4 car lengths ahead of the bus, and I was travelling about 21 m.p.h." (Id. ¶ 7.) Vazquez then states:
"As I was glancing into my left rear view mirror, I observed the ambulette stop short at the intersection of 2nd Avenue and East 117th Street. I applied the brakes in an attempted [sic] to avoid contact with the short-stopped ambulette. There was another bus travelling left of the bus and a pedestrian in the lane right of the bus."
(Id.) Vazquez states that she was "unable to stop the bus in time" and that her bus struck the ambulette. (Id. ¶ 8.) After the impact, Vazquez states that she "observed a vehicle in front of the ambulette making a right turn from the second lane from the right at the intersection of 2nd Avenue and 117th Street." (Id. ¶ 8.)
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].)
Ambulette Defendants move for summary judgment dismissing the complaint in its entirety as against them, arguing that they cannot be liable as a matter of law because their vehicle was stopped when it was rear-ended. (Greenberg Affirm. ¶ 4, 6-10.) Both plaintiff and defendants New York City Transit Authority (NYCTA), Manhattan and Bronx Surface Transit Operating Authority (MABSTOA) and MTA Bus Company (collectively, Transit Defendants), oppose the instant motion, arguing that there are material issues of fact concerning whether the ambulette was stopped when it was rear-ended. (Chang Opp. Affirm. ¶ 6; Lawson Opp. Affirm. ¶¶ 6-8.) In addition, they argue that McGuire has failed to explain why he stopped, and that "bringing the ambulance to a sudden stop on a busy roadway after previously travelling at a high rate of speed in the rain" was negligent. (Chang Opp. Affirm. ¶¶ 10, 12.) Lastly, Transit Defendants argue that the instant motion "is premature, as depositions have not yet been held." (Chang Opp. Affirm. ¶¶ 5, 21-22.)
"It is well settled that a rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the driver of the rear vehicle, and imposes a duty on the part of the operator of the rear vehicle to come forward with an adequate nonnegligent explanation for the accident." (Morgan v Browner, 138 AD3d 560 [1st Dept 2016] [quotation marks omitted]; see also Corrigan v Porter Cab Corp., 101 AD3d 471 [1st Dept 2012] [same]; Johnson v Phillips, 261 AD2d 269, 271 [1st Dept 1999] [same].) As a corollary, a presumption also arises that no negligence on the part of the rear-ended vehicle contributed to the accident. (Soto-Maroquin v Mellet, 63 AD3d 449, 450 [1st Dept 2009] [finding that defendant failed to "rebut the presumption that no negligence on plaintiff's part contributed to the accident"]; see also Leandry v City of New York, 127 AD3d 520, 520-21 [1st Dept 2015] [finding that plaintiff's claim that defendant stopped suddenly without signaling failed to rebut the presumption that defendant was not negligent].)
Contrary to the argument of plaintiff's counsel and Transit Defendants' counsel, whether the ambulette was stopped or slowing down at the moment of impact is not a material issue of fact warranting denial of summary judgment. The presumption of negligence arises irrespective of whether the front vehicle was fully stopped or slowing down. (See De La Cruz v Ock Wee Leong, 16 AD3d 199, 200 [1st Dept 2005] ["The rule is that a driver must maintain a safe distance between his vehicle and the one in front of him, and any rear-end collision establishes a prima facie case of negligence on the part of the rear-ending driver." [emphasis added], citing Johnson, 261 AD2d at 271]; Morgan, 138 AD3d 560 ["[A] rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the driver of the rear vehicle . . . ." [emphasis added]]; Leguen v City of New York (Dept. of Sanitation), 30 Misc 3d 1235(A) [Sup Ct, NY County 2011] ["The presumption in rear-end cases does not arise from the act of the lead vehicle in stopping or braking, but from the duty of the driver of the vehicle behind to keep a safe distance and not collide with traffic ahead. This duty is codified by VTL 1129(a) . . . ."].) Thus, as a corollary, the presumption of non-negligence by the rear-ended party also arises irrespective of whether that party was stopped or stopping at the moment that it was rear-ended. (See Soto-Maroquin, 63 AD3d at 450.)
The Transit Defendants have failed to rebut the presumption of Vazquez's negligence. Based on Vazquez's sworn statement, she was driving directly behind McGuire's ambulette for about three blocks before her bus rear-ended the ambulette. (Vazquez Aff. ¶¶ 6-7.) Although Vazquez stated that the ambulette "stopped short at the intersection of Second Avenue and East 117th Street" (id. ¶ 7), "[a] claim that the lead vehicle made a sudden stop, standing alone, is insufficient to rebut the presumption of negligence on the part of the rear driver." (Morgan, 138 AD3d 560 [quotation marks omitted]; see also Johnson, 261 AD2d at 271 [same].) Transit Defendants' counsel's assertion that McGuire acted negligently by suddenly stopping the ambulette in wet road conditions also fails to rebut the presumption that McGuire was non-negligent. Drivers have a duty under Vehicle and Traffic Law § 1129 (a) to maintain "safe distances between their cars and cars in front of them and this rule imposes on them a duty to be aware of traffic conditions, including vehicle stoppages." ( Johnson, 261 AD2d at 271 [internal citation omitted]; see also LaMasa v Bachman, 56 AD3d 340 [1st Dept 2008] ["A driver is expected to drive at a sufficiently safe speed and to maintain enough distance between himself and cars ahead of him so as to avoid collisions with stopped vehicles, taking into account weather and road conditions."].) Here, it was Vazquez's duty, as the following driver—not McGuire's duty, as the lead driver—to account for weather conditions when ensuring that there was adequate distance between her bus and the ambulette in front of her.
Similarly unavailing is Transit counsel's reliance on Tutrani v County of Suffolk (10 NY3d 906 [2008]) and Passos v MTA Bus Co. (129 AD3d 481, 482 [1st Dept 2015]), both of which involved three-car accidents. In Tutrani, a Suffolk County police car suddenly decelerated from approximately 40 miles per hour to 1 to 2 miles per hour while changing lanes "in the middle lane of the three-lane highway." (10 NY3d at 907.) This caused the plaintiff in Tutrani to suddenly "slam[] on her brakes", which successfully avoided a collision with the police car, only then to be rear-ended by a co-defendant's vehicle. (Id.) Thus, Tutrani involved three vehicles, where the front car first stopped suddenly, forcing the middle car to stop suddenly, which was then rear-ended by a third car. By contrast, the vehicles here were not traveling on a highway but on a city street at rush-hour. In addition, based on Vazquez's sworn statement, "the ambulette sped up to about 4 car lengths ahead of the bus, and I was travelling about 21 m.p.h." roughly a few blocks before the accident. (Vazquez Aff. ¶ 7.) Thus, the allegations of the dramatic series of short stops present in Tutrani are not present here. Passos is also distinguishable. Unlike the rear-end collision here, Passos involved a three-car accident, in which the driver of the lead vehicle described feeling two separate and distinct impacts from behind. (129 AD3d at 482.) The Passos majority therefore reasoned that this testimony raised an issue of fact as to whether the middle car rear-ended the front car before being itself rear-ended by the following MTA Bus. (Id.) Thus, the majority concluded that a jury question was presented: "namely, whether Passos's collision with the [front] vehicle created a foreseeable danger that the MTA defendants would also have to brake aggressively, increasing the risk of a second rear end collision." (Id. at 483.)
Also, to the extent that Transit counsel is arguing that the instant case involved three vehicles like Tutrani, then the ambulette would be similar to the plaintiff's vehicle in Tutrani (the middle vehicle), in that that the ambulette would have been forced to slow down in response to a vehicle ahead of it making a right turn. --------
Finally, the Court does not agree with Transit Defendants that this motion is premature on the issue of the liability of the Ambulette Defendants because discovery has not been completed. "[T]he granting of summary judgment was not premature as both drivers have submitted affidavits and the material facts are undisputed." (Santos v Booth, 126 AD3d 506 [1st Dept 2015].)
CONCLUSION
Accordingly, it is hereby
ORDERED that the motion for summary judgment by defendants Anthony E. McGuire and Sigma Transportation Inc. is GRANTED in favor of these defendants, and the complaint is dismissed in its entirety as against said defendants only, and all cross-claims by and 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 defendants. Dated: May31, 2016 New York, New York