| Pinilla v New York City Tr. Auth. |
| 2014 NY Slip Op 07640 [122 AD3d 703] |
| November 12, 2014 |
| Appellate Division, Second Department |
[*1]
| Luzmil M. Pinilla, Respondent, v New YorkCity Transit Authority et al., Appellants, and Bilal Lewis, Respondent, et al.,Defendant. |
Zaklukiewicz & Puzo, LLP, Islip Terrace, N.Y. (Daniel E. Furshpan ofcounsel), for appellants.
Block, O'Toole & Murphy, LLP, New York, N.Y. (Michael J. Hurwitzand Christina R. Mark of counsel), for plaintiff-respondent.
Richard T. Lau, Jericho, N.Y. (Gene W. Wiggins of counsel), fordefendant-respondent.
In an action to recover damages for personal injuries, the defendants New York CityTransit Authority, Maggie's Paratransit Corp., and Tyrone Kemp appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Kings County (Graham, J.),entered August 16, 2013, as granted the plaintiff's motion for summary judgment on theissue of liability against them and that branch of the cross motion of the defendant BilalLewis which was for summary judgment dismissing all cross claims insofar as assertedby them against him, and the defendants Metropolitan Transportation Authority andAgostino Vona appeal, as limited by their brief, from so much of the same order asgranted that branch of the cross motion of the defendant Bilal Lewis which was forsummary judgment dismissing all cross claims insofar as asserted by them againsthim.
Ordered that the order is reversed insofar as appealed from, on the law, with one billof costs payable to the appellants by the plaintiff and the defendant Bilal Lewis, theplaintiff's motion for summary judgment on the issue of liability against the defendantsNew York City Transit Authority, Maggie's Paratransit Corp., and Tyrone Kemp isdenied, and that branch of the cross motion of the defendant Bilal Lewis which was forsummary judgment dismissing the cross claims of the appellants asserted against him isdenied.
On November 28, 2011, the defendant Tyrone Kemp was operating anAccess-A-Ride vehicle eastbound on Jefferson Avenue in Brooklyn. The vehicle wasowned by the defendant New York City Transit Authority (hereinafter NYCTA) andleased to Kemp's employer, the defendant Maggie's Paratransit Corp. On that date, thedefendant Bilal Lewis was operating his vehicle, in which the plaintiff was a rear-seatpassenger, northbound on Howard Avenue, which, in the vicinity of Jefferson Avenue, isa one-way northbound thoroughfare. It is undisputed that these two vehicles collidedwith one another in the intersection of Jefferson Avenue and Howard Avenue. Theplaintiff subsequently commenced the instant action against NYCTA, Access-A-Ride,the Metropolitan Transportation Authority (hereinafter the MTA), Maggie's ParatransitCorp., Kemp, Agostino Vona, [*2]who allegedlyco-owned or maintained the Access-A-Ride vehicle, and Lewis, alleging negligence andseeking to recover damages for personal injuries. The plaintiff moved for summaryjudgment on the issue of liability against NYCTA, Maggie's Paratransit Corp., andKemp. Lewis cross-moved for summary judgment dismissing the complaint and all crossclaims insofar as asserted against him. The Supreme Court granted both the motion andthe cross motion. NYCTA, Maggie's Paratransit Corp., Kemp, the MTA, and Vonaappeal from the portions of the order that were adverse to them.
In support of that branch of his cross motion which was for summary judgmentdismissing the appellants' cross claims, Lewis failed to demonstrate, prima facie, that hewas free from comparative fault in the happening of the accident or that Kemp's allegednegligence was the sole proximate cause of the accident (see Skoczek v Delgado, 115AD3d 844 [2014]; Graeber-Nagel v Naranjan, 101 AD3d 1078 [2012]; Simmons v Canady, 95 AD3d1201 [2012]). Therefore, the Supreme Court erred in granting that branch of Lewis'scross motion which was for summary judgment dismissing the appellants' cross claimsagainst him.
The Supreme Court further erred in granting the plaintiff's motion for summaryjudgment on the issue of liability against the NYCTA, Maggie's Paratransit Corp., andKemp. The right of an innocent passenger to summary judgment on the issue of whetherhe or she was at fault in the happening of an accident is not restricted by potential issuesof comparative negligence as between two defendant drivers (see CPLR 3212[g]; Anzel v Pistorino, 105AD3d 784, 786 [2013]; Medina v Rodriguez, 92 AD3d 850 [2012]; Garcia vTri-County Ambulette Serv., 282 AD2d 206, 207 [2001]; Johnson v Phillips,261 AD2d 269, 272 [1999]; Silberman v Surrey Cadillac Limousine Serv., 109AD2d 833, 833-834 [1985]; seealso Conigliaro v Premier Poultry, Inc., 67 AD3d 954, 955 [2009]). Here, theplaintiff made a prima facie showing on her motion for summary judgment with evidencethat she did not engage in any culpable conduct that contributed to the happening of theaccident (see Medina v Rodriguez, 92 AD3d at 851). However, in opposition,Kemp raised a triable issue of fact as to whether he was completely free from fault in thehappening of the accident. Specifically, in his affidavit, Kemp asserted that he broughtthe Access-A-Ride vehicle that he was operating to a complete stop at a stop signcontrolling eastbound traffic on Jefferson Avenue at its intersection with HowardAvenue, and remained stopped there for six or seven seconds. He further asserted that hethen activated his left directional signal, looked to his right for oncoming northboundtraffic, and observed Lewis's vehicle coming from his right approximately one blockaway in the right northbound lane of Howard Avenue. Kemp explained that he thenmade a left turn onto the left northbound lane of Howard Avenue, and that it appearedthat he had sufficient time and space to do so, when Lewis accelerated from 35 miles perhour to 50 miles per hour, attempted to change lanes from the right to the left northboundlane of Howard Avenue, and cut in front of Kemp's vehicle in order to secure a parkingspot next to the westernmost, or left, curb of Howard Avenue. According to Kemp,Lewis's conduct in accelerating to a speed in excess of the applicable speed limit,abruptly attempting to change lanes, and cutting off Kemp's vehicle was the soleproximate cause of the accident, since Kemp immediately applied his brakes but couldnot avoid the collision. This affidavit was clearly sufficient to raise a triable issue of factas to whether Kemp was completely free from fault in the happening of the accident.Therefore, the Supreme Court should not have granted the plaintiff's motion for summaryjudgment on the issue of liability against NYCTA, Maggie's Paratransit Corp., and Kemp(see Reitz v Seagate Trucking,Inc., 71 AD3d 975 [2010]; Morrison v Montzoutsos, 40 AD3d 717 [2007]).
The plaintiff's remaining contention is not properly before this Court (see AMS Prods., LLC vSignorile, 66 AD3d 929 [2009]). Rivera, J.P., Roman, Sgroi and LaSalle, JJ.,concur.