Wilson v. Tillman

Full title: LAWRENCE L. WILSON, Plaintiff v. ROLAND K. TILLMAN, MTA BUS COMPANY…

Court: Supreme Court, New York County

Date published: Jun 27, 2023

2023 N.Y. Slip Op. 32137 (N.Y. Sup. Ct. 2023)

Opinion

Index No. 161442/2019 Motion Seq. No. 002

06-27-2023

LAWRENCE L. WILSON, Plaintiff v. ROLAND K. TILLMAN, MTA BUS COMPANY Defendants

DENISE M. DOMINGUEZ, JUDGE

Unpublished Opinion

PRESENT: HON. DENISE M DOMINGUEZ Justice

DECISION AND ORDER ON MOTION

DENISE M. DOMINGUEZ, JUDGE

The following e-filed documents, listed by NYSCEF document number (Motion 002) 26,27,28,29,30, 31, 32, 33, 34, 35, 36, 37, 38, 39,40,41,42, 43,44,45,46, 47,48,49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 64, 65, 66, 67, 68, 69, 70,71,72,73,74,75,76,97 were read on this motion to/for "_JUDGMENT - SUMMARY.

For the reasons that follow, Plaintiffs motion seeking summary judgment and dismissal of Defendant's affirmative defenses is denied.

Background

This personal injury matter arises out of an alleged accident between two motor vehicles on October 19, 2018. In the complaint, Plaintiff alleges that on October 19, 2018, while employed for a bus company, he was stopped at a designated bus stop and while letting off passengers, Defendant's public bus operated by Defendant-bus driver, Roland K. Tillman ("Tillman") struck Plaintiff s vehicle.

Plaintiff, now pre-note of issue, and prior to conducting party depositions, moves for summary judgment on the issue of liability, alleging that Defendant's negligent driving was the sole proximate cause of the accident.¹ Defendants oppose.

1 As per the Court's Order dated November 9, 2022, (NYSCEF Doc. 76) Motion Seq. 2 was incorrectly deemed withdrawn, when the Court intended the Order to apply to Motion Seq. 1. An Amended Order, dated April 10, 2023, (NYSCEF Doc. 97) was subsequently issued recalling and amending the November 9, 2022 Order. Accordingly, Motion Seq. 2 will be addressed on its merits.

Discussion

When a plaintiff moves for summary judgment, that plaintiff has the high burden of establishing entitlement to judgment as a matter of law by demonstrating that there is no defense to the cause of action (see CPLR 3212 [b]). In a negligence action, this burden is met with evidence in admissible form dispelling any material questions of fact for a trial including issues regarding plaintiffs own negligence and shared culpability for the accident (Calcano v. Rodriguez, 91 AD 468 [1^st Dept 2012]; Alvarez v Prospect Hosp, 68 N.Y.2d 320 [1986]; Andre v. Tomeroy, 35 N.Y.2d 361[1974]). Only when this this burden is met will opposing papers be considered (see Alvarez, 68 N.Y.2d 320).

Here, upon review, Plaintiffs evidence does not establish entitlement to judgment as a matter of law.

Plaintiff primarily relies on a police report to argue that Defendant admitted guilt by telling the police officer that he side-swiped Plaintiffs vehicle. Yet, the writings of a police officer who did not witness the accident will not be considered evidence of the cause of the accident (Garcia v. BLS Limousine Serv. of New York, Inc., 199 A.D.3d 612, [1^st Dept 2021]; Coleman v. Maclas, 61 A.D.3d 569 [1^st Dept 2009]). Furthermore, even if the police report was certified, it does not establish negligence as a description ofa collision is not an admission of fault (seee.g. Corderov. Escobar, 186A.D.3d 1315 [2d Dept 2020]; see also Concepcion v. City of New York, 202 A.D.3d 403 [1^st Dept 2022]).

Plaintiff also submits affidavits and transcript testimony. During the 50-h hearing on June 28, 2019, notably, Plaintiff testified that the bus he was operating had a camera, yet he did not know what the camera recorded, nor submits any recording (NYSCEF Doc. #68). Plaintiff also testified that the accident occurred while the bus was in park in a designated bus stop at the intersection of Woodhull and White Street. He also identified the location as Woodhull and State Street. Plaintiff further testified that he was letting passengers out and was waiting for the traffic light to turn from red to green. Plaintiff described the intersection as having one lane continuing to the right and one lane going to the left. He did not know how long he had been sitting at the light prior to the accident, but states that had not moved his bus from the time he let passengers off until the collision occurred. Plaintiff also testified that he did not see from what direction the Defendants' bus was coming prior to the collision.

In an affidavit dated January 11, 2022, Plaintiff states that he was pulled over and parked in a designated bus stop in the rightmost westbound lane "at or around" 8 State Street in Manhattan. Yet, contrary to his 50-h testimony, Plaintiff was now able to determine the movements of the Defendants' bus, asserting that the Defendants' bus made contact with his parked bus as the Defendants' bus was moving from the left lane to the right lane while it passed the Plaintiffs bus.

In addition, Plaintiff submits a Google image of the area where the accident occurred, as well as three photographs allegedly depicting the accident (NYSCEF Doc. #30). Yet the Google image provided (purporting to be from June 2018) contrary to Plaintiffs 50-hearing testimony, shows that not one, but two lanes of traffic turn to the right at the subject intersection (NYSCEF Doc. #30, 31). In addition, Plaintiffs papers do not allege that Plaintiff was operating a public bus nor a bus with permission to stop at a bus stop. Plaintiff only alleges that he was operating the bus in an employment capacity.

Upon Defendants' filing opposing papers, Plaintiff submitted another affidavit, dated April 5, 2022 (NYSCEF Doc. #67). In this affidavit, Plaintiff alleges that he dropped off the passengers and was waiting for the traffic light to turn green at the time of the collision. While it appears that this second affidavit is submitted as a reply, and thus not appropriate, even if this Court considered such affidavit, it would only show more contradictions as to how the accident happened and raise further questions of facts about the witness' credibility (see e.g. Migdol v. City of New York, 291 A.D.2d 201 [1^st Dept 2002]).

Plaintiff also relies on Supreme Court decisions, Guerrero v. Milla, 135 A.D.3d 635 [1st Dept 2016], Steigelman v. Transervice Lease Corp., 145 A.D.3d 439 [1st Dept 2016] and Sanchez v. Oxcin, 157 A.D.3d 561 [1st Dept 2018]. Yet, in Guerrero, Steigelman, and Sanchez, unlike here, plaintiffs supported their summary judgment motions with evidence establishing their prima facie burden. As the Plaintiff has not met his prima facie burden, the sufficiency of the Defendants' opposition will not be considered.

Affirmative Defenses

In light of Plaintiffs contradicting evidence and the lack of evidence as to the type of bus Plaintiff was operating, dismissal of the affirmative defense of Plaintiff s failure to where is a seatbelt is denied at this time.

Accordingly, it is hereby

ORDERED that the Plaintiffs motion for summary judgment as to liability pursuant to CPLR §3212 is denied; it is further

ORDERED that the Plaintiffs motion to dismiss the Defendants' affirmative defense of Plaintiffs contributory negligence is denied; and it is further

ORDERED that the Plaintiffs motion to dismiss the Defendants' affirmative defense of Plaintiffs failure to wear a seatbelt is also denied; and it is further

ORDERED that the Defendants shall serve a copy of this order with notice of entry upon the Clerk of the Court and the Clerk of the General Clerk's Office within 20 days from the date of this Order.