Opinion
Index No. 450927/2017
01-21-2020
PAULA WALTERS , Plaintiff, v. MV PUBLIC TRANSPORTATION, INC., "JOHN DOE", First and last names being fictitious and unknown, intending to represent the operator of Access-A-Ride Van Number 8399 on April 11, 2016 at West Side Highway and 12th Avenue, New York, New York, METROPOLITAN TRANSPORTATION AUTHORITY and NEW YORK CITY TRANSIT AUTHORITY, Defendants.
NYSCEF DOC. NO. 113 DECISION AND ORDER Motion Sequence 2 Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:
| Papers | Numbered | NYSCEF # |
| Plaintiff's Motion/ Affirmations/Memo of Law | 1 | 12-19 |
|---|---|---|
| Defendants' Affidavit in Opposition | 2 | 22-23 |
Plaintiff Paula Walters commenced this action against Defendants MV Public Transportation, Inc. (MV), Metropolitan Transportation Authority (MTA) and New York City Transit Authority (Transit) for personal injuries allegedly sustained on April 11, 2016 at 7:45 a.m. at the intersection of the West Side Highway & 12th Avenue in Manhattan while Plaintiff was a passenger in an MV "Access-A-Ride" vehicle.
Defendants move for summary judgment and to dismiss the plaintiff's Complaint on the grounds that there are no triable issues of fact and the causes of action have no merit.
It is well-settled that the proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by providing sufficient evidence to demonstrate the absence of material issues of fact (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 (1957); Alvarez v Prospect Hosp., 68 NY2d 320 (1986); Zuckerman v New York, 49 NY2d 557 (1980). To obtain summary judgment, the moving party must establish its defense by tendering sufficient evidentiary proof, in admissible form, sufficient to warrant the Court, as a matter of law, to direct judgment in the movant's favor (see Friends of Animals, Inc. v Associated Fur Manufacturers, Inc., 46 NY2d 1065 [1979]). Failure to make a prima facie showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Alvarez v Prospect Hosp., at 324).
Defendants contend that Plaintiff does not establish a prima facie showing that her claimed injuries were proximately caused by the negligent operation of the Access-A-Ride vehicle (van). In support of their motion, the van driver, Hector Estrada, testified there was no incident during his run and the GPS (Global positioning system) equipment installed in the van similarly was devoid of data indicating that the van was stopped other than at red lights.
Defendants submit two affidavits and the vehicle positioning data, both of which refute Plaintiff's claim that the Access-A-Ride vehicle was involved in an accident, let alone at the claimed location and time. The affidavits are those of the van operator, Hector Estrada, and Eunice Poku, a Contract Manager for Transit's Paratransit Division. Hector Estrada indicates that he picked up and dropped off the plaintiff without incident, and that the post-trip inspection revealed no damage to the van. He also claims to have inspected the vehicle at the start of his shift, including turning it on, making sure it had gas, that the lights worked, that the four side panels had no dents, that the seatbelts were in working order, and that the AVLM (Automated Vehicle Location and Monitoring System) system worked. The AVLM unit was positioned to the right of the driver in the middle of the car and contained a screen which turned on when the car was turned on. Mr. Estrada would input the mileage and his driver ID number into the system. Upon his inspection, he did not find anything wrong with the braking, the steering, or the electrical systems in the vehicle.
The affidavit of Eunice Poku provides detailed information of the GPS equipment in the van and the printouts that were generated by the software which revealed no indication that the van was involved in an accident.
In opposition, Plaintiff contends that she observed the Access-A-Ride vehicle brake, strike the rear of a white vehicle in front of it, and that the impact was heavy. Prior to the impact, Plaintiff claims that she heard a "little bit" of tires screeching, and following the incident, she had a conversation with the vehicle operator, Hector Estrada, who mentioned a problem with the brakes. According to Plaintiff's testimony, following the occurrence, the Access-A-Ride vehicle operator sat in the car and then the adverse driver came out of his vehicle and then the Access-A-Ride vehicle operator left his vehicle, as well. Plaintiff testified that the incident occurred at approximately 7:45 a.m., which she knows because she looked at the time displayed on her cell phone.
Defendant's witness, Eunice Poku, the Contract manager for the Paratransit Division of the NYCTA, testified that all Access-A-Ride vehicles are equipped with MDT (mobile data terminal) units, which are computer screens within the vehicles that house AVLM software and GPS. The MDT device is positioned in the front between the driver's seat and the passenger seat. The AVLM unit provides a map of where the vehicle is throughout the day. The operator can only turn the AVLM unit on and off and cannot control it in any other way.
Reviewing the AVLM printout, Ms. Poku explained that the GPS in the MDT unit "pings" every two minutes, depicting a vehicle icon and timestamp, indicating the van's location. She determined that at 7:44 a.m., the van was still in Brooklyn, close to the Brooklyn Battery, headed toward Manhattan. At 7:48, the van, having just exited the Brooklyn Battery Tunnel, was in Manhattan, on the West Side Highway. At 7:54 a.m., the van was "around Canal Street," "around the Holland Tunnel" and at 8:16 a.m., the van was traveling on the Henry Hudson Parkway. During the eight-minute period between 8:00 and 8:08, the vehicle pinged at two-minute intervals, though no vehicle icon appeared. Ms. Poku determined that the van was moving uptown and stuck in traffic, and that at 8:10 and 8:12, the van was moving more quickly.
Plaintiff further contends in response to Ms. Poku's technical testimony that evidence, even video footage, offered in support of a motion for summary judgment that fails to disprove a plaintiff's claims only raises a triable issue of fact that requires denial of the motion (see Derouen v Savoy Park Owner, LL.C., 109 AD3d 706 [1st Dept 2013]). The Derouen court found that Defendant's surveillance video did not conclusively establish that the decedent tripped over her shopping cart, or disprove the claim that she was thrown to the floor by the elevator shaking as she exited it, rather the video only raised a triable issue of fact as to whether the elevator malfunctioned.
The facts in Derouen are clearly distinguishable because the Derouen Defendant used the video footage to establish how the incident occurred, whereas here, the GPS evidence, which reflects steady ebb-and-flow traffic movement at the alleged time of the incident, strongly suggests that no accident occurred.
Though Hector Estrada and Eunice Poku both firmly insist that Access-A-Ride operators are required to report accidents, Plaintiff alleges that it is not inconceivable that an operator would decline to report the same in light of the lack of damage. However, this is merely the Plaintiff's conjecture, unsupported by any facts or evidence.
Similar to the facts in Castro v Hatim, 174 AD3d 464 [1st Dept 2019]), where plaintiff maintained factually incompatible positions that at the time of the accident she was attempting to cross six lanes of traffic on Bruckner Boulevard, and was moving from the fifth lane from the curb into the fourth lane from the curb, while she was also at a standstill in the midst of moving traffic, the van in which plaintiff Walters was a passenger could not possibly have been rear-ended at the intersection of 12th Avenue and the Westside Highway if the GPS indicated that the vehicle was still in the Brooklyn Battery Tunnel at the alleged time that incident occurred.
Plaintiff has failed to raise sufficient evidentiary facts to defeat Defendant's summary judgment motion. In summary judgment analysis, the court "must discount the plaintiff's testimony where the plaintiff has relied solely on [her] own testimony, uncorroborated by any other witnesses or evidence, and her testimony belied common sense" (Castro v Hatim, at 466). As in Castro, Plaintiff's testimony is unsubstantiated and implausible, particularly in light of the navigational information and lack of a police report. Accordingly, it is
ORDERED, Defendant's motion for summary judgment is granted.
Any requested relief not expressly addressed herein has nonetheless been considered and is hereby expressly denied. Dated: January 21, 2020
New York, New York
ENTER:
/s/_________
Lisa A. Sokoloff, J.C.C.