Opinion
Index No. 510992/2019 Cal Nos. 35 36 Motion Seq. Nos. 2 4
01-22-2024
SUSAN SCORZA and LOUIS SCORZA, Plaintiffs, v. ELMARNI SALAHEDDINE, NEW YORK CITY TRANSIT AUTHORITY, ACCESS-A-RIDE, METROPOLITAN TRANSPORTATION AUTHORITY, MTA-NYC TRANSIT PARATRANSIT DIVISON, E-HAIL PROGRAM, DMITRY S. SKYLAR and STANISLAV SKYLAR Defendants.
Unpublished Opinion
DECISION & ORDER
RUPERT V. BARRY, A.J.S.C.
Recitation, as required by CPLR 2219(a), of the papers considered in review of Defendants New York City Transit Authority's (hereinafter "NYCTA") and Metropolitan Transportation Authority's (hereinafter "MTA"), motion for summary judgment to dismiss the claims against them pursuant to CPLR 3212 (Motion Seq. No.: 2): NYSCEF Doc. Nos.: 44-58; 81-89; 91; 93-95; 99-101, and Plaintiffs Susan Scorza and Louis Scorza motion for summary judgment against all Defendants and Plaintiffs' motion to strike the affirmative defense of comparative negligence, and to strike the answer of NYCTA, ACCESS-A-RIDE, MTA, MTA-NYC Transit Paratransit Division, and E-Hail Program or, in the alternative, preclude said Defendants from offering evidence at trial (Motion Seq. No.: 4): NYSCEF Doc. Nos.: 66-80; 96-98.
Upon the foregoing cited papers, and after oral argument, this Court finds as follows:
This matter arises from allegations by Plaintiff Susan Scorza that she sustained injuries on November 15, 2019, while a passenger in the vehicle owned by Defendant Salaheddine, in an arranged ride provided by Defendant Access-A-Ride through the E-hail program provided by Defendants NYCTA and MTA. Plaintiff Susan Scorza alleges that she sustained serious permanent injures when the vehicle owned by Defendant Stanislav Skylar and operated by Defendant Dmitry Skylar, t-boned the vehicle in which she was a passenger. Defendants NYCTA and MTA move for summary judgment to dismiss the claims brought against them on the basis that they are not variously liable because they did not have any ownership or control over the vehicle or driver involved in the accident (Motion Seq. No.: 2).
Plaintiffs filed their motion for summary judgment as to liability against all Defendants and to strike the affirmative defense of comparative negligence. Additionally, in that Defendants did not provide Plaintiffs' with their post-Note of Issue demand for a copy of the contract between NYCTA, MTA and Curb, Plaintiffs also move, pursuant to CPLR 3126, to strike the answer of Defendants NYCTA, ACCESS-A-RIDE, MTA, MTA-NYC Transit Paratransit Division, and E-Hail Program or, in the alternative, to preclude said Defendants from offering evidence at trial (Motion Seq. No.: 4).
Defendants' Motion
To prevail on summary judgment, the movant must make a prima facie showing of entitlement as a matter of law (Hutchinson v Sheridan Hill House Corp., 26 N.Y.3d 66 [2015]). Summary judgment should be denied if there is any doubt as to the existence of a factual issue (Asabor v Archdiocese of N.Y., 102 A.D.3d 524 [1st Dept 2013]). To defeat summary judgment, the party opposing the motion must show there is a material question of fact that requires a trial (Zuckerman v New York, 49 N.Y.2d 557 [1980]).
Ordinarily, a principal cannot be held vicariously liable for the actions of independent contractors (Chainani by Chainani v Board of Educ., 87 N.Y.2d 370, 380 [1995]). In determining whether an employer-employee relationship existed, the degree of control over the alleged employee and the methods used to assert the control must be analyzed (Castro-Quesada v Tuapanta, 148 A.D.3d 978, 979[ 2d Dept 2017]). "'Factors relevant to assessing control include whether the worker: (1) worked at his own convenience, (2) was free to engage in other employment, (3) received fringe benefits, (4) was on the employer's payroll, and (5) was on a fixed schedule ...'" (Id at 979 [internal citations omitted]). "Where the proof on the issue of control presents no conflict in evidence or is undisputed, the matter may be properly determined as a matter of law" (Bhanti v Brookhaven Mem'l Hosp. Med. Ctr., 260 A.D.2d 334, 335 [2d Dept 1999]). Deposition testimony is sufficient to establish the matter on the issue of control (Berger v Dykstra, 203 A.D.2d 754 [3d Dept 1994]).
In support of Defendants NYCTA's and MTA's assertion that they are not vicariously liable for the injuries sustained by Plaintiff Susan Scorza, those Defendants submitted a notice to admit by Defendant Salaheddine wherein Defendant Salaheddine asserted that he is the operator and owner of the said vehicle involved in the accident. Defendant Salaheddine, in his deposition, further testified that he chose whether to pick up passengers; had no limitations on his employment; never received any fringe benefits from Defendants NYCTA and MTA; was not on Defendants NYCTA and MTA's payroll; and was free to take breaks at his own leisure (NYSCED Doc. No.: 54: Salaheddine tr at 27, 97-107).
In opposition to the evidence present by NYCTA and MTA, Plaintiffs did not submit any evidence in contradiction.
Additionally, Defendants NYCTA &MTA also submitted the deposition testimony of Rosemarie Venero, the Command Center Director of Paratransit Headquarters, which is a division of New York City Transit Authority. Ms. Venero testified that Defendants NYCTA &MTA paid their third-party vendors and not the taxi-drivers (NYSCEF Doc. No.:56: Venero tr at 44).
This Court finds that Defendants NYCT and MTA have met their prima facie burden of entitlement to summary judgment. This Court further finds that Plaintiffs did not present evidence to rebut the prima facie showing of NYCTA and MTA.
Plaintiffs' Motion
Plaintiffs filed their motion for summary judgment against all Defendants on the issue of liability. As this Court granted summary judgment dismissing the complaint against Defendants NYCTA &MTA, it will only address the issue of summary judgment as to liability in regard to the remaining Defendants.
As there remains triable issues of fact, as to whether Defendant Salaheddine or Defendant Dmitry Skylar caused the accident, this Court will deny Plaintiffs motion for summary judgment. However, Plaintiffs' motion to strike the defense of comparative negligence is granted, as it is uncontested that Plaintiff Susan Scorza was a passenger in the vehicle involved in the accident and was wearing a seatbelt.
Plaintiffs also allege that Defendants NYCTA, ACCESS-A-RIDE, MTA, MTA-NYC Transit Paratransit Division, and E-Hail Program failed to provide the contract between NYCTA, MTA, and Curb as requested by Plaintiffs. Plaintiffs move this Court to strike the answer of Defendants NYCTA, ACCESS-A-RIDE, MTA, MTA-NYC Transit Paratransit Division, and E-Hail Program and to preclude said Defendants from offering evidence at trial.
This motion is moot in regard to Defendants NYCTA and MTA.
Pursuant to CPLR 3126, a court can strike pleadings if any party willfully withholds information that a court finds pertinent or ordered to be disclosed. Striking a pleading is a drastic measure and therefore, Courts will consider the prejudice imposed to establish whether this drastic remedy is necessary (Molinari v Smith, 39 A.D,3d 607 [2d Dept 2007]).
In the instant case, Plaintiffs failed to make a showing of how disclosure would aid them in establishing liability; nor did Plaintiffs make a sufficient showing that additional discovery was warranted due to the presence of unusual or unanticipated circumstances (Gelin v New York City Tr. Authority, 189 A.D.3d 789 [2d Dept 2020]); (Greenberg v McLaughlin, 242 A.D.2d 603 [1997] [Request for further discovery should be denied where the moving party fails to demonstrate a sufficient basis for that additional discovery]). Additionally, Plaintiffs request for the subject contract was after Plaintiffs filed the Note of Issue on August 4, 2023, which declared this case ready for trial with no outstanding discovery request.
Upon the foregoing discussion, this Court rules as follows:
ORDERED, that Defendants NYCTA and MTA motion for summary judgment is GRANTED, and the complaint is dismissed as those Defendants.
ORDERED, that Plaintiffs motion for summary judgment as to liability against all remaining Defendants is DENIED.
ORDERED, that Plaintiffs motion for summary judgment as to comparative fault in regard to Defendants ELMARNI SALAHEDDINE, ACCESS-A-RIDE, DMITRY S. SKYLAR, MTA-NYC TRANSIT PARATRANSIT DIVISON, E-HAIL PROGRAM and STANISLAV SKYLAR is GRANTED, and the any comparative fault assertions by these Defendants are stricken.
ORDERED, that Plaintiffs motion to strike the pleadings or, in the alternative, preclude Defendants NEW YORK CITY TRANSIT AUTHORITY, ACCESS-A-RIDE, METROPOLITIAN TRANSIT AUTHORITY, MTA-NYC TRANSIT PARATRANSIT DIVISON, and E-HAIL PROGRAM from offering said evidence at trial is DENIED.
This constitutes the decision and order of this Court.
All applications not specifically addressed herein are Denied.