As we enter the last month of summer, bike riding is on many of our “to do” lists.

Accidents and incidents involving bicycle riding are a fertile source of often complicated and protracted litigation – raising a broad panoply of issues relating, among many others, to the duty of care; violation of the Vehicle and Traffic law; the right of way; and the obligation to maintain public highways, streets and roads.  Several recent examples follow:

Gami v. Cornell Univ., 2018 NY Slip Op 04812 (App. Div 3rd Dept. June 28, 2018)

Supreme Court granted Cornell’s motion for summary judgment dismissing the complaint.

The Appellate Division summarized the facts and prior proceedings:

In June 2014, plaintiff was riding her bicycle on a roadway located on the campus of defendant Cornell University…when she suffered injuries after she fell over her handlebars. According to plaintiff, the accident was caused by her bicycle coming to an abrupt stop when her front wheel made contact with a deteriorated area of asphalt abutting a crosswalk. She commenced this negligence action against defendant, alleging that it failed to properly maintain the roadway. Following joinder of issue, plaintiff moved for partial summary judgment as to liability and defendant cross-moved for summary judgment dismissing the complaint. Holding that the defect in question was trivial, Supreme Court denied plaintiff’s motion, granted defendant’s cross motion and dismissed the complaint[.]

The applicable law:

Although a landowner has a duty to maintain its property in a reasonably safe condition…trivial defects are not actionable…”[T]here is no predetermined height differential that renders a defect trivial”… Instead, courts must consider “the facts presented, including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury”…Thus, “a small difference in height or other physically insignificant defect is actionable if its intrinsic characteristics or the surrounding circumstances magnify the dangers it poses, so that it unreasonably imperil[s] the safety of a pedestrian”[.]

And affirmed finding that:

In contrast with the prototypical trivial defect case, which usually involves a pedestrian who trips or falls, we are presented with a bicyclist who purports that her 26-inch tire hit what is, essentially, a 1½-inch deep and two-inch-wide pothole…There are no quarrels over the dimensions of the defect or that plaintiff’s fall occurred on a clear, dry day. The record includes photographs that confirm the size and location of the defect, relative to the roadway and crosswalk, and evinces that plaintiff previously traversed this area on bicycle several times prior to the accident, without incident. The photographs also reveal that the crosswalk against which the defect is located, made of bricks and demarcated from the asphalt with a granite boarder, would be visible to a bicyclist well before his or her tires made contact with the defect. This evidence was sufficient to satisfy defendant’s prima facie burden on its cross motion for summary judgment[.]

In opposition to defendant’s cross motion, plaintiff failed to raise a triable issue of fact…In concluding that there is an issue of fact, the dissent primarily relies upon the disagreement between the parties’ respective expert witnesses about whether the defect in question could have caused plaintiff to be propelled over her handlebars. This evidence, however, goes to causation, which we need not consider because there is no question of fact that defendant did not breach a duty to plaintiff in the first instance…Absent additional evidence of circumstances that magnify the danger posed by this small pothole — a common roadway abnormality — we conclude that Supreme Court properly granted defendant’s cross motion for summary judgment.

One Judge, as follows, dissented:

[C]olor photographs in the record reveal that an irregular portion of the asphalt — approximately 10 inches long and 2 inches wide — had sunk and was partially missing adjacent to a granite border along a raised crosswalk, and that portions of the granite were chipped. William Meyer, the expert testifying on behalf of defendant Cornell University…indicated that the defect was approximately one-inch deep. According to Meyer, the 26-inch diameter of plaintiff’s bicycle wheels would have traveled over the defect without incident. Meyer further opined that the front wheel “lacked any evidence of front impact damage” and surmised that plaintiff either applied the brakes abruptly or the brakes failed to release.

Accepting that defendant met its prima facie burden of proof that the defect was trivial…plaintiff testified that she did not apply the brakes and that the bicycle “got stuck in the ditch” causing her to pitch forward.  Plaintiff’s expert, Nicholas Bellizzi, described the defect — located adjacent to a raised stone paver crosswalk — as a “pothole” that was “uneven, non-flush, non-uniform and irregular in shape.” Given these characteristics, Bellizzi opined that the defect could and did “trap [plaintiff’s] bicycle wheel and cause loss of control.” Bellizzi’s opinion relied, in part, on the campus police report, which stated that the defect was one inch to 1½ inches in depth. In that report, one of the responding officers characterized the pothole as “considerable” and that the sunken asphalt created a “considerable lip.” The report also noted that the front wheel rim was bent. Plaintiff’s other expert, Eugene Camerota, examined the bicycle, confirmed that the front wheel rim was bent and opined that the damage was consistent with a finding that there was a “targeted” force — such as impact with the pothole — that engaged the bike wheel and caused the accident. Like Bellizzi, Camerota noted the juxtaposition of the defect and the raised crosswalk.

That this incident occurred on a roadway involving a bicyclist does not obviate the landowner’s duty to maintain the condition of the roadway in a reasonably safe condition for motor vehicles and bicyclists alike. I am mindful that the issue here is not causation but, rather, whether the nature of the condition was such as to provide notice to the landowner that the roadway was not reasonably safe. Conceptually, the abrupt nature of the accident and purported damage to the front bicycle rim speak to causation, but these factors also reflect the hazardous nature of the condition. Given the circumstances of the accident, including the characteristics of the defect and the conflicting expert opinions, and viewing this evidence in a light most favorable to plaintiff, the nonmoving party, I conclude that a question of fact has been raised as to whether the defective condition is actionable[.]

With respect to defendant’s notice of the defective condition, the record confirms that, during 2014, defendant’s grounds department did periodic inspections of the roads and crosswalks. Bellizzi opined that the characteristics of the pothole indicated that it had been there for a long period of time before the accident. These factors, combined, raise a question of fact as to whether defendant, at a minimum, had constructive notice of the defect[.]

Luttrell v. Vega, 2018 NY Slip Op 04468 (App. Div. 4th Dept. June 15, 2018)

The Appellate Division, as follows, summarily reversed the Order of Supreme Court that granted defendant’s motion for summary judgment dismissing the complaint:

Plaintiff commenced this negligence action seeking damages for injuries that she sustained when a vehicle operated by defendant struck her foot while she was walking her bicycle on the street beneath an overpass. We agree with plaintiff, as limited by her brief, that Supreme Court erred in granting defendant’s motion for summary judgment dismissing the complaint[.]

Viewing the evidence in the light most favorable to plaintiff and affording her the benefit of every reasonable inference…we conclude that defendant failed to meet his initial burden on his motion of establishing as a matter of law that plaintiff’s negligence was the sole proximate cause of the accident…Defendant’s own submissions raise triable issues of fact, including whether he violated his “`common-law duty to see that which he should have seen [as a driver] through the proper use of his senses’“…and his statutory duty to “exercise due care to avoid colliding with any bicyclist[ or] pedestrian”[.]

Bermeo v. Time Warner Entertainment Co., L.P., 2018 NY Slip Op 01433 (App. Div. 1st Dept. March 6, 2018)

The Appellate Division, as follows, summarily reversed the Decision of Supreme Court that granted plaintiff’s motion for partial summary judgment on the issue of liability:

Plaintiff, while traveling south on a bicycle, collided with the passenger side of defendants’ northbound truck as it turned left across his path.  While the record establishes that plaintiff had the right of way, an issue of fact exists as to whether plaintiff was negligent in that he could have avoided the collision through the exercise of reasonable care but failed to do so.

Rojas v. Glory Trading Corp., 2018 NY Slip Op 50099(U) (App. Div. 2nd Dept. January 19, 2018)

Supreme Court granted defendant’s motion to set aside a jury verdict.

The Appellate Division briefly summarized the facts and prior proceedings:

At a jury trial of this action to recover damages for injuries plaintiff sustained while he had been riding a bicycle — when defendant Hua Tang opened the door of a motor vehicle owned by defendant Glory Trading Corp. and driven by defendant Kok Weng Wong — the jury found that defendant Kok Weng Wong was negligent and that his negligence was a substantial factor in causing the accident. The jury also found that plaintiff was not negligent. Defendants moved to set aside the jury verdict and for a new trial, arguing that the jury’s determination that plaintiff had not been negligent was contrary to Vehicle and Traffic Law § 1236 (b) and the court’s charge to the jury. The Civil Court dismissed the jury and, then, after receiving posttrial submissions from the parties, by order entered March 28, 2016, granted defendants’ motion. The court stated that the jury had been instructed with respect to New York Pattern Jury Instruction 2:26, which provides, in pertinent part:

“No person shall operate a bicycle unless it is equipped with a bell or other device capable of giving a signal audible for a distance of at least one hundred feet, except that a bicycle shall not be equipped with nor shall any person use upon a bicycle any siren or whistle . . . In considering the evidence in this case, you must determine whether defendant has proven that plaintiff failed to comply with those statutes. If you find that plaintiff violated either or both of the statutes, such a violation constitutes negligence. You cannot disregard a violation of the statute and substitute some standard of care other than that set forth in the statute.”

The court concluded that “[n]otwithstanding [the jury] charge and the undisputed testimony that [plaintiff] did not have a bell or other sounding device, the jury returned a verdict finding [plaintiff] not negligent.”

The Second Department, as follows, summarily affirmed:

In light of the undisputed testimony that plaintiff did not have a bell or audible device, and the fact that such failure constituted a violation of Vehicle and Traffic Law § 1236 (b), the court properly determined that the verdict finding that plaintiff was not negligent could not stand since the absence of a bell or audible device constituted negligence as a matter of law…The jury was required, but failed, to decide whether such negligence was a proximate cause of the accident, and thus, under the circumstances, its verdict in favor of plaintiff, finding defendants 100% liable, was against the weight of the evidence[.]

Feldberg v. Skorupa, 2017 NY Slip Op 05199 (App. Div. 2nd Dept. June 28, 2017)

In an action to recover damages for personal injury arising out of a bicycle/minivan accident, Supreme Court denied defendant’s cross-motion for summary judgment dismissing the complaint.

The Second Department described the pleadings and prior proceedings:

The plaintiff alleges that on the evening of August 17, 2008, he was riding a bicycle on 150th Street in Queens when a minivan owned and operated by the defendant pulled out of a driveway and struck him. Later that evening, the plaintiff returned to the accident site, identified the minivan he believed was involved in the accident, and recorded its license plate number. The plaintiff subsequently commenced this action against the defendant to recover damages for personal injuries. As relevant to this appeal, the defendant thereafter cross-moved for summary judgment dismissing the complaint, contending that the plaintiff’s deposition testimony revealed that the plaintiff would be unable to prove that the defendant’s vehicle was the vehicle involved in the accident. The Supreme Court denied the defendant’s cross motion, concluding that he had failed to establish, prima facie, that his vehicle was not involved in the accident.

Concluding that:

“A defendant moving for summary judgment dismissing a complaint cannot satisfy its initial burden by merely pointing to gaps in the plaintiff’s case”…Here, the defendant failed to make a prima facie showing of his entitlement to judgment as a matter of law because he offered no evidence to affirmatively demonstrate that his vehicle was not the vehicle that struck the plaintiff. Although the defendant pointed to alleged gaps in the plaintiff’s proof revealed by the plaintiff’s deposition testimony, this was insufficient to satisfy his initial burden…Since the defendant failed to sustain his prima facie burden, the Supreme Court properly denied his cross motion for summary judgment dismissing the complaint regardless of the sufficiency of the plaintiff’s opposition papers[.]

Harth v. Reyes, 2017 NY Slip Op 05204 (App. Div. 2nd Dept. June 28, 2017)

On July 23, 2015, the plaintiff, while riding a bicycle, was involved in a collision with a vehicle operated by Reyes.

After depositions were conducted, plaintiff moved for summary judgment on the issue of liability and Supreme Court denied the motion.

The Second Department, as follows, summarily reversed:

Here, the evidence submitted on the plaintiff’s motion, which included the deposition transcripts of the plaintiff and Reyes, demonstrated, prima facie, that Reyes was negligent as a matter of law because he violated Vehicle and Traffic Law § 1163(a)…The deposition testimony showed that Reyes struck the rear of the plaintiff’s bicycle while making a right turn from Wythe Avenue onto North 6th Street. The plaintiff was in the bicycle lane and ahead of the defendants’ vehicle when the accident occurred. This evidence demonstrated that Reyes failed to yield the right-of-way to the plaintiff, that the turn could not be made with reasonable safety, and that Reyes failed to see that which he should have seen. The evidence submitted in support of the motion also demonstrated that Reyes’s negligence was the sole proximate cause of the subject accident, without any comparative negligence on the plaintiff’s part. In opposition, the defendants failed to raise a triable issue of fact. Accordingly, the Supreme Court should have granted the plaintiff’s motion for summary judgment on the issue of liability.

Fein v. Cook, 2017 NY Slip Op 06603 (App. Div. 1st Dept. September 26, 2017)

Supreme Court dismissed the complaint against defendant-employer in this action where:  “Decedent died from injuries sustained when, while in the middle of a crosswalk in Central Park, he was struck by a bike ridden by defendant Neil Cook, a bicyclist and coach employed by AGI, which operates, among other things, a fitness facility on the Upper East Side.”

The First Department, as follows, summarily affirmed:

The motion court correctly determined that AGI could not be held vicariously liable for Cook’s alleged negligence, as Cook was acting outside the scope of his employment. At the time of the accident, Cook was engaged in a weekend bicycle ride, in a public park, using a bicycle that he purchased and equipped, was alone and was not coaching anyone, and was not acting in furtherance of any duties owed to AGI[.]

Cook’s unsupported belief, as set forth in an affirmative defense, that his bicycle riding had a work component to it, and his unsworn Response to the Notice to Admit…which improperly sought admissions as to employment status, a contested issue central to the action…do not create triable issues of fact as to whether Cook was acting in the scope of employment. Unlike in [a prior case], relied upon by plaintiff, there is no indication that AGI was exercising any control over Cook at the time of the accident[.]

The motion court correctly dismissed plaintiff’s direct negligence claim against AGI. There is no evidence that AGI knew or should have known of Cook’s alleged propensity to dangerously ride his bicycle in Central Park, an element necessary to support the claim for negligent hiring and retention…and plaintiff’s conclusory allegations of deficient training are insufficient to defeat summary judgment[.]

Cohen v. Macaya, 2018 NY Slip Op 28095 (Sup. Ct. K. Co. March 23, 2018)

Supreme Court summarized the facts:

Plaintiff Linda Cohen…was injured on November 3, 2011, when she was struck by Santos Macaya…who was riding his bicycle in the designated bicycle lane on the West Drive of Prospect Park, at the intersection of Southwest Lake Drive and Well House Drive…She testified at her 50-h hearing and deposition that she had no recollection of the incident. According to Macaya’s deposition testimony, plaintiff was at first walking in the pedestrian lane, but “within a split second,” his right shoulder made contact with plaintiff’s back in the bicycle lane and her body was on the ground in front of him. Macaya further testified that the location was “fast down hill.” Less than two weeks after Cohen was struck, the NYC Department of Transportation…performed immediate remedial measures; placing safety barrels, upgrading the crosswalks to high visibility, and trimming the bushes at the subject location. Further design changes to the West Drive were implemented in May 2012.

Plaintiff’s claim:

Plaintiff claims that the City was negligent in the design and maintenance of the roadway in Prospect Park, and for failing to conduct proper safety studies and implement simple remedial measures despite nine previous incidents on the West Drive, which purportedly gave the City actual notice of the dangerous condition on the roadway. Plaintiff also claims that the City’s negligence was the proximate cause of her injuries.

The question presented:

This case raises the issue of whether, following the Court of Appeals’ decision in Torturro v. City of NY…the City of New York…is immune from liability when, in the midst of conducting a safety study of a roadway in a public park, a pedestrian is struck and injured by a passing bicyclist.

The City moved for summary judgment dismissing the complaint on the ground that it was immune from liability “because it is in the midst of a study roadway at the time of the incident involving plaintiff.

The facts as to the study:

In August 2011, the defendants, City, the NYC Department of Parks and Recreation…and the DOT formed a joint Task Force with the Prospect Park Alliance…to study how to increase safety on the West Drive for pedestrians, bicyclists and motorists…According to the deposition testimony of Keith Bray…the Borough Commissioner of the DOT, the Task Force was formed in response to an incident on the West Drive in June 2011, where a pedestrian was hit head on by a bicyclist as she was crossing the roadway. The Task Force held meetings in September and October of 2011, where it discussed “priority concerns and key issues” on the West Drive with possible strategies and solutions, such as having two pedestrian paths on the left side; two bicycle lanes on the right, one slow and the other fast, separated by a buffer; and proposing signs that say “Slow pedestrian traffic proceed with caution.” Compiling a list of accidents on the West Drive was also discussed. Bray further testified that up to the time of the incident, he had not discussed the problems on the West Drive with highway or civil engineers, traffic safety experts, or other outside consultants.

The legal standard:

The standard of liability to be imposed upon the City depends on the nature of its act or omission which allegedly caused the injury. Such acts or omissions are characterized as either “government” or “proprietary” functions. Acts “undertaken for the protection and safety of the public pursuant to the general police powers” are considered “governmental functions.”… Examples of government functions include “police and fire protections, oversight of juvenile delinquents, issuance of building permits or certificates of occupancy, certifying compliance with fire safety codes . . . and traffic regulations.”…The “governmental function immunity defense” shields a municipality from liability for discretionary actions taken during the performance of these functions[.]

On the other hand, a municipality’s activities which “essentially substitute for or supplement traditionally private enterprises” are considered “proprietary functions.”…If the municipality was exercising a proprietary function, it “is subject to suit under the ordinary rules of negligence applicable to non-governmental parties.”…The planning, design, and maintenance of roads is generally considered to be a proprietary function[.]

Noting that:

[I]n consideration of a municipality’s absolute and non-delegable duty of keeping its streets in a reasonably safe condition, a municipality has qualified immunity from liability arising out of highway planning decisions in the specific proprietary field of roadway safety…To establish entitlement to this immunity, the municipality must first demonstrate that the relevant discretionary determination resulted from a “deliberative decision-making process.”…A “deliberative” process involves invoking the expertise of qualified employees and obtaining the necessary data…It must then demonstrate that its duly authorized public planning body has “entertained and passed on the very same question of risk as would ordinarily go to the jury.” …If the municipality has made such a showing, plaintiff then has the burden of showing that immunity should be denied because after becoming aware of a dangerous traffic condition, the municipality failed to undertake an adequate study to formulate appropriate remedial measures or its traffic plan has no reasonable basis[.]

Concluding that:

Defendant City does not dispute that it had notice of a dangerous condition on the West Drive, and that the Task Force was formed in response. The issue is whether defendants conducted an adequate study. Although the defendants participated in a Task Force to study the general safety of the West Drive for pedestrians, bicyclists and motorists, this Court finds that at the time of the incident involving plaintiff, a duly authorized public planning body had not yet passed on the very same questions of risk that would go to the jury, as the study was still in the preliminary stage.

In particular, Bray’s testimony reveals that as of the time of the incident, the Task Force had not yet studied whether barrels, high visibility markings, and speed reduction and pedestrian warning signs should have been placed on the West Drive, much less the subject location. Given the preliminary stage of the study, immunity cannot be conferred upon the City to avoid liability to it[.]

Furthermore, the City fails to demonstrate that its failure, prior to the incident, to place warning signs and barrels to slow downhill traffic at the subject location, and to trim the hedges to improve visibility, resulted from a “deliberative decision-making process.” The City’s failure to invoke the expertise of highway and civil engineers, traffic safety experts, or other experts at the Task Force meetings prior to the incident, certainly indicates the lack of a genuine deliberative process)[.]

Evans v. Norecaj, 2018 NY Slip Op 30754(U) (Sup. Ct. Bx. Co. March 21, 2018)

Supreme Court addressed defendant’s motion for summary judgment where the plaintiff, while riding his bicycle in front of a restaurant owned by defendants, was stuck by a vehicle.

The Court summarized the facts:

[A]t his deposition plaintiff testified as follows: At the time of the accident, he was traveling along Main Street, Yonkers, NY, approaching Dolphin Restaurant. When he was in front of the driveway adjacent to the restaurant, he was struck by a vehicle making a left turn into the driveway. The operator of the vehicle was wearing a Dolphin uniform, including a black vest. He had ridden his bike past the Dolphin restaurant about three or four times a week for six years and always saw “the guys out there working” wearing the same uniform as the driver was wore. The driver of the vehicle that struck him brought the vehicle into the driveway, stopped in front of the restaurant, and the owner of the car got in the car. He knew the operator was a valet attendant because he was wearing a uniform.

The only personal knowledge of the circumstances surrounding the accident testified to by Mark Gjurashaj at his deposition consists of the following: At the time of the accident, he owned a 1999 Jeep Cherokee, the vehicle involved in the accident. On the night at issue, he gave his son Martin Gjurashaj permission to take the vehicle to Dolphin Restaurant with his wife to have dinner. Martin worked as a waiter at the restaurant but he was “off” on the date of the accident.

At his deposition, Albert Vukdedaj, the sole owner of APV, testified as follows: APV provides valet parking services to restaurants, and has been providing those services to Dolphin Restaurant since 2007 pursuant to a written contract. He learned in January or February of 2012, that the instant lawsuit had been commenced. His employees were located “in the center of” three restaurants for which APV provided valet parking services, Xaviars, Dolphin and Hudson Café. Each restaurant would get a permit from the City of Yonkers for certain parking spaces in a nearby lot and notify him of the spaces where his employees could park vehicles. He did most of the office work and assigned his 25-30 employees to various locations. Usually, for every fifty people with a dinner reservation they assign one parking attendant at a restaurant. He calls his employees to let them know where to go to work at any given time. At Dolphin, he had the same people there four days a week but “not the same people six, seven days a week.” Lucaj would have been at Dolphin on Thursday, Friday and Saturday. On the date of the accident, Robert Norecaj was an employee of APV. He did not have a set schedule but worked “as needed.” A work schedule was maintained on a computer. Hard copies were kept but were destroyed in a flood. He had a hard copy of the schedule for September 26, 27, 28 and 29 because an insurance company had asked him to provide it when he first learned of the accident. The schedule indicates that O. Cespedes worked both shifts, 11:00 a.m. and 4:00 p.m. on Thursday, September 27th (the date of the accident). Robert Norecaj worked for APV for two years. After the accident, he asked Norecaj what had happened and why he was at the restaurant that night because he was not supposed to be working that day but Norecaj “had nothing to say because he was never scheduled to work.” He asked Norecaj why he was driving Gjurashaj’s car that night and Norecaj told him that he knew the valet attendants would not accept that car because they knew it had bad breaks; he did not want to embarrass Gjurashaj in front of the girl he was with so Norecaj parked the car. After this incident, Vukdedaj suspended Norecaj for two weeks. All APV employees wear uniforms but they do not wear black vests. He does not know if Norecaj was wearing a uniform at the time of the accident.

At his deposition, Jimmy Rugova testified as follows: He has been the General Manager at Dolphin Restaurant for six and one-half years. He was working at the time of the accident. It was a busy night and he first learned of the accident when an ambulance arrived. A valet service, APV or AVP, takes the cars of patrons to a municipal lot located about a block and a half away from the restaurant. Dolphin had a contract with APV in 2011 for valet parking services. He dealt with Albert at APV on a daily basis regarding its services. Martin Gjurashaj was an employee of Dolphin Restaurant in 2011. He came to learn that it was Gjurashaj’s vehicle that struck the plaintiff and that one of the valet attendants was operating it at that time. When he received papers in this lawsuit, he spoke with Albert at APV and “there was some sort of acknowledgment that there had been an accident.

*     *     *

In opposition to APV’s summary judgment motion, Mark Gjurashaj submitted the deposition testimony of Jimmy Rugova and points to his testimony that he came to learn that it was Gjurashaj’s vehicle that was involved in the accident and that a valet attendant was operating the vehicle at the time of the accident. APV also points to plaintiff’s testimony that the driver of the vehicle that struck him was wearing a Dolphin uniform.

In opposition to both motions, plaintiff submitted a copy of the police report for the incident which indicates that Robert Norecaj was operating the vehicle which struck plaintiff. While this document is not in admissible form, it is supported by other admissible evidence, i.e., the deposition testimony of Albert Vukdedaj.

And denied the motion because:

Here, based upon the parties’ submissions, triable issues of fact exist, at a minimum, as to whether Robert Norecaj was operating the vehicle when it struck plaintiff; whether Robert Norecaj was working as an APV valet parking attendant at the time of the accident; the negligence of Robert Norecaj[.]

Moss v. Panama Yellow Taxi Inc., 2018 NY Slip Op 50331(U) (Sup. Ct. Q. Co. March 12, 2018)

Supreme Court addressed Cardwell’s motion for summary judgment dismissing the complaint and all cross-claims against her.

The Court summarized the facts:

This case concerns a passenger who “doored” a cyclist while exiting a taxi. Specifically, the motion and cross motion stem from personal injuries allegedly sustained by a bicyclist in lower Manhattan, in the afternoon of October 28, 2014, when he struck the open, rear passenger door of a taxi. The plaintiff alleges that the taxi passenger, co-defendant Charlita Cecelia Cardwell…opened the door negligently in the vehicle owned by defendant Panama Yellow Taxi Inc. …and driven by co-defendant Mohammad G. Mazumder…. Cardwell, the passenger, seeks summary judgment dismissing both the complaint and all cross claims as against her.

Noting at the outset:

First, as a general proposition, there can be no dispute that a taxi is a common carrier. This Court has previously stated that, as such, the primary purpose of a taxi driver is to carry safely[.]

Summarizing the deposition testimony:

Although opposing the motion, neither counsel for the plaintiff nor the attorneys for defendants Panama and Mazumder cite to any transcripts of the examinations before trial…that would indicate how the plaintiff may have been negligent. This Court thus undertook the task of reading the voluminous EBT transcripts. The plaintiff bicyclist admits that his bike was equipped with a bell…There is no indication whether plaintiff rang the bell. Co-defendant Cardwell testified that the accident occurred in the middle of a work day and that she did not consume any alcohol that day prior to the accident[.]

Adverted to the applicable provisions of the Vehicle and Traffic Law and the prior decisions of the Court of Appeals:

VTL sections 370 and 388 require the owner and driver of a taxi or a vehicle for hire to be insured. In Kohl v. American Transit Ins. Co., …the New York Court of Appeals stated and held:

Kristopher Kohl, a passenger in a taxicab, was sued by a bicyclist who claimed that he was injured when Kohl opened the taxi’s door. The Appellate Division correctly held that Kohl was not insured under the taxi owner’s policy of automobile liability insurance. The policy says that it “shall inure to the benefit of any person legally operating” the insured vehicle in the business of the insured. The word “operating” cannot be stretched to include a passenger’s riding in the car or opening the door.

Concluding that:

John McEvoy, Esq., counsel for Panama and Mazumder, however, notes that “VTL § 388 does not insulate the person who opens the door or is otherwise the active tortfeasor from liability” and reminds the Court simply that “[s]ummary judgment is a drastic remedy.”…Other than the stylings of Mr. McEvoy as an Ex Cathedra pronouncement, his naked observation is devoid of any factual support from the voluminous EBT transcripts to explain how Cardwell, the taxi passenger here, may have been negligent. No attempt is made to quote from pertinent EBT transcript passages to show how Cardwell, the taxi passenger, may have been negligent.

The Court dismissed the complaint as against the passenger, noting that:

Thus, as is so often the case by lawyers who make observations and expect the courts to do independent legal research to fill in the blanks, the burdens placed on this Court were serious. Aside from reading the EBT transcripts, this Court engaged in its independent legal research[.]

Wieland v. Consolidated Edison, Inc., 2017 NY Slip Op 31362(U) (Sup. Ct. N.Y. Co. June 26, 2017)

Defendants moved for summary judgment in an action where plaintiff alleged that he was injured while riding his bicycle in Central Park.

Supreme Court summarized plaintiff’s deposition testimony:

The accident occurred at approximately 8:45 pm, as he was riding onto the road, approximately 150 feet down the road from the entrance of the road on 81st Street and Central Park West;

He had observed a Consolidated Edison…truck parked at or by the entrance of the road, which he passed when he rode into the park;

It was dark outside and the street was fairly dim; he did not have a front headlight on his bicycle;

The temperature was freezing, below 32 degrees, and dry;

He lost control of his bicycle when he rode over an extremely thin layer of black ice on the road; After his fall, a Con Ed worker came to his aid within one to two minutes; he believed the worker was wearing a jacket identifying him as a Con Ed employee; The Con Ed truck was in his view from where he fell; After his accident, he left the park in the same direction from which he had entered, and passed the truck again; He could not see what the employees near the truck were doing or what activity they were engaged in, and did not see them with any tools; He had not seen the workers working with hoses or releasing liquid onto the ground in the location near the truck, or water running into the road near where his accident occurred; and He believed that the ice was created by the Con Ed employees as there was no ice on any other roadway that evening.

The competing assertions:

Defendants assert that none of their records reflect that they were performing work at the location and time identified by plaintiff, and that even if they had, that plaintiff fails to establish that their work caused or created the ice which caused him to fall. Having failed to allege or demonstrate that the employees released or were releasing any liquid onto the road before his fall, defendants contend that plaintiff’s allegation that they created the ice is fatally speculative[.]

Plaintiff argues that defendants have not met their prima facie burden as they only point to alleged gaps in his evidence, rather than affirmatively establishing that they performed no work in the vicinity of his accident that created the ice. He contends that defendants’ reliance on their attorney’s affirmation as proof that none of its employees was working near the site of his accident is insufficient, and that they must establish that they were not negligent. Plaintiff also maintains that further discovery is warranted and likely to lead to evidence showing that defendants performed work at the location and identifying the kind of work performed[.]

He relies on an Emergency Control Ticket created upon a caller’s request that defendants perform work at 11 West 81st Street and Central Park West which indicates that defendants were scheduled to perform work within a three-block radius of the location of the accident and on the accident date…and asserts that defendants’ record searcher indicated at her deposition that defendants failed to search for records as to the work that was performed in response to the ticket.

Plaintiff also maintains that defendants may be held liable as the ice could only have been created by defendants and it is “improbable that any other entity had sufficient control over the roadway on that date to cause the ice to form.”[.]

In reply, defendants observe that plaintiff’s claim, based on the allegation that the mere presence of defendants’ employees at the accident location suffices to establish that defendants created the ice, is not viable[.]

The applicable law:

A contractor may be held liable for an affirmative act of negligence that results in creation of a dangerous condition upon a public street…The contractor-defendant meets its burden on summary judgment by demonstrating that it did not create the alleged dangerous condition[.]

Concluding that:

[I]t is undisputed that more than four years of discovery, yielding at least three court orders and additional depositions, has failed to produce any evidence that: (1) defendants were present at the accident location on the date of the accident; (2) that defendants were performing work or otherwise active at the location that day; and (3) that defendants’ work or activity created the ice on which plaintiff fell. Having sufficiently shown that no documents exist showing defendants’ presence at the location on February 5, 2009, defendants have established, prima facie, that they did not create the icy condition[.]

Even if defendants’ employees were at the entrance to the road at the time of plaintiff’s accident, there is no indication that they were performing any work on the road or in the vicinity and/or that they were working with water or another substance which could have caused the ice to form. Defendants have thus established that they were not negligent in creating the icy condition, and plaintiff fails to raise a triable issue of fact[.]

Defendants’ mere presence at the road’s entrance, some 150 feet away from the scene, does not constitute proof that they created the icy condition[.]

Moreover, the road on which plaintiff fell was not only open to the public but was heavily trafficked. Thus, there is no evidence that defendants had exclusive control of it[.]

The address referenced in the emergency control ticket relied on by plaintiff is neither the scene of the accident nor the location where plaintiff claims defendants’ truck was parked. He thus does not show that further discovery is warranted, especially as numerous record searches were performed and numerous depositions of the searchers were taken[.]

And noting:

That plaintiff may be left without a party to take responsibility for his fall is unfortunate, but not unheard of.

Giannelis v. Borg Warner Morse Tec, Inc., 2017 NY Slip Op 32249(U) (Sup. Ct. Tompkins Co. October 25, 2017)

Defendants moved for summary judgment dismissing the complaint on the ground that Borg Warner Morse owed no duty to a bike rider on the public roadway adjoining its property.

Supreme Court summarized the facts:

Harriet Giannelis passed away on June 12, 2013 after she was struck by a car at approximately 7:20 am while riding her bicycle on Warren Road in Ithaca, New York. The car was owned by Nancy Elliott, and being operated by Kelly Elliott, who had just finished her shift at Borg Warner and was leaving the plant premises via the Borg Warner South Drive onto Warren Road. As Kelly Elliott was exiting South Drive and taking a right to merge southbound onto Warren Road, she struck the right, rear side of the bicycle being ridden by Giannelis, who was traveling south on Warren Road and had just passed the Borg Warner South Drive entrance. Warren Road in that location has four lanes. A northbound lane, southbound lane, a “turn only” lane in between those lanes, and the merge lane coming out of the Borg Warner facility.

The south exit of the Borg Warner facility consists of a control gate and ground sensors in the roadway to activate the gate to open when a vehicle approaches. A short distance after the exit control gate, the road splits into two lanes for the exiting vehicles. One lane is for vehicles going straight or turning left onto Warren Road proceeding northbound. The second lane is for vehicles turning right to proceed southbound on Warren Road, and there is an extended merge lane allowing drivers to gradually merge onto Warren Road. There is a yield sign on the right (southerly) side of the roadway beyond the control gate and at approximately the area where the center lane and merge lane separate.

The complaint:

Plaintiff alleges that Borg Warner negligently and recklessly designed and maintained the southbound exit, thereby creating a dangerous condition. Plaintiff points to alleged deficiencies in the control gate, greenery and shrubbery obstructing the view of exiting vehicles, as well as the installation of the yield sign, among other things.

The pending motion:

[B]org Warner made this Motion for Summary Judgment arguing that the accident occurred on the public roadway, and that it had no duty to maintain that public roadway to protect travelers from, or warn of, any hazardous conditions. Plaintiff counters by arguing that Borg Warner did, indeed, owe a duty of care because it created the dangerous condition and because the South Exit to Warren Road was created for the special benefit of Borg Warner. Plaintiff also asserts that Borg Warner’s negligence was the proximate cause of the accident. Borg Warner filed a reply Memorandum disputing Plaintiff’s arguments and arguing that any alleged negligence on the part of Borg Warner was not the proximate cause of the accident, and rather, it was the negligence of Kelly Elliott in failing to exercise due caution while merging onto Warren Road, and in violation of applicable Vehicle and Traffic Laws, as well as decedent’s own actions.

Concluding as to the duty of care that:

“In order to sustain a cause of action for negligence, a court must first determine, as a matter of law, that the defendant owed a duty to the plaintiff.”…”In the absence of a duty, there is no breach and without a breach there is no liability.”…”It is equally well established that before a defendant may be found liable for its negligence, a duty must exist, the breach of which is the proximate cause of the plaintiff’s injury”. “Negligence in the air, so to speak, will not do.”…The existence and scope of a defendant’s duty in a particular case is a question of law for the court[.]

Borg Warner owned the property next to the roadway where this accident occurred. “The general rule is that an owner of land abutting [public property] does not, solely by reason of being an abutter, owe to the public a duty to keep the [public property] in a safe condition.”…The courts have recognized “three exceptions to this rule, applicable when the abutting owner 1) uses the area for a ‘special purpose’, 2) creates the dangerous condition, or 3) violates a statute or ordinance requiring the abutter to maintain the area.”[.]

The proof in this case shows that the accident occurred on the public street, and accordingly the burden is shifted to the Plaintiff “to establish a basis for [D]efendant[‘]s liability as owner and maintainer of the adjacent land.”…Thus, the inquiry turns to whether any of the three exceptions apply in this case.

As to the creation of a dangerous condition:

Plaintiff’s Amended Complaint alleges that Borg Warner failed to design the southbound exit to ensure the safety of the travelers on Warren Road. He contends that the control gate did not function properly to control the flow of traffic, and the yield sign was not appropriate or properly located, and that Borg Warner failed to provide instruction to its employees that they should stop and look for pedestrians and cyclists when entering Warren Road. In essence, Plaintiff contends that Borg Warner created this dangerous condition, and therefore had a duty to travelers on Warren Road. Defendant argues that caselaw supports its position that it does not owe a duty to pedestrians, cyclists, or motorists on the public roadway, simply because it owns the land adjacent to the public road. It further contends although it could have installed a stop sign instead of a yield sign, it had no obligation to do so.

Both parties acknowledge the seminal case in this area is Pulka v. Edelman, supra, where the Court of Appeals found there could be no liability on a parking garage operator for injuries to a pedestrian who was struck by a car being driven by a patron, out of the garage, and across a public sidewalk. The Court in Pulka found that the garage owner did not owe a duty to the pedestrians on the public street, framing the issue as whether “any garage has a duty to control the conduct of its patrons for the protection of off-premises pedestrians.”…Certainly, the Vehicle and Traffic Law imposes a duty upon the driver to act appropriately to protect other motorists and pedestrians…However, the Court in Pulka concluded that it would place too heavy a burden on the garage if it had to be responsible for the conduct of its patrons, because “there was no opportunity to fulfill that duty.”…However, Pulka juxtaposed the garage owner/patron situation with a master/servant relationship, stating that “one example of a situation in which there is a duty to use care to control another’s conduct is the master and servant relationship.”…That is the situation presented in this case, where Borg Warner is the employer of the person (Kelly Elliott), whose conduct allegedly should have been controlled.

*     *     *

The teaching of the Pulka line of cases is that the landowner has no duty, and no ability, to control the behavior of patrons and/or others with whom they have no relationship. However, a duty may arise to control the conduct of another person when a special relationship exists, such as master-servant[.]

Given the special relationship between Borg Warner and Kelly Elliott, it may not be unreasonable, impractical or unduly burdensome to impose a duty upon Borg Warner, even though it is an abutting landowner. Unlike Pulka, where the garage owner had no means to fulfill the duty or influence conduct of its patrons, an employer is in a much different position to be able to influence the conduct of its employees. They can do so by training, instruction or simple company communication to employees to exercise due caution, and follow traffic laws so as to ensure the safety of its workers as well as the traveling public. In fact, evidence was submitted that showed Borg Warner did provide various training programs including obeying traffic signs, but not specifically to the Warren Road intersection. Unlike Pulka, the employer does not face an unreasonable burden. The exact parameters of what steps might fulfill that duty is not before this Court, but only whether Borg Warner has established an entitlement to summary judgment on the basis that it had no duty, and therefore, no liability.

Deposition testimony from Borg Warner employees has been submitted which indicated that it was not uncommon for bicyclists and pedestrians to travel on Warren Road near the Borg Warner exit, and that Borg Warner had not issued any instructions or warnings to it employees regarding yielding the right of way to pedestrians and cyclists. Furthermore, Borg Warner controlled the flow of traffic from its private parking lot via the control gate. At the south entrance, entry into the Borg Warner premises was by means of a badge reader. Thus, the access would be limited to those who had a badge issued by Borg Warner. To leave via the south exit, the vehicle would trigger the senors to cause the gate to lift. Testimony also showed that the gate did not always operate properly, and could allow more than one car to pass through at a time. Borg Warner had issued instructions or training to employees not to go through more than one at a time. Borg Warner also maintained the shrubs, hedges, grass and foliage in the vicinity of the south exit, and according to Plaintiff, that contributed to the hazards at the intersection.

Borg Warner had also placed a yield sign at the start of the merge lane, and Plaintiff contends that the sign improperly suggested to drivers entering the merge lane that they did not need to come to a complete stop. Similar to the garage owners in Pulka, Borg Warner argues that it could not prevent Kelly Elliott, or any other driver, from disregarding a stop sign, any more than it could prevent them from disregarding a yield sign, and therefore, it would be unreasonable to impose that duty upon it. However, as the Court has already noted above, since this case involves an employer employee relationship, the reasoning of the Pulka decision does not apply. Furthermore, even assuming that Borg Warner had not duty to place any sign at the merge lane, by providing traffic control assistance at the intersection, it may have assumed a duty to the traveling public…As Justice Cardozo wrote “[i]t is ancient learning that one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all.”…Thus, even though Borg Warner may not have had a duty to place any signs at the exit, an argument can be made that by placing any sign, Borg Warner assumed a duty to place the proper sign in the proper location, so as to fulfill the purpose of the sign in the first place- the protection of travelers on that stretch of road. Or at least, not make the condition more dangerous by placing an improper sign.

Since this case involves an employer-employee relationship, a special relationship did exist such that Borg Warner may have had some ability to control, or influence, the actions of its employees at the yield, by way of warning or proper signage. The Court concludes that there are questions of fact presented as to whether Borg Warner created the dangerous condition.

As to special use or purpose:

The “special use” or “special purpose” doctrine applies in those cases where the public property has been altered in some way for the exclusive benefit of the abutting landowner…The exception “is not satisfied by the mere fact that a commercial establishment derives some benefit from an adjacent [public area].”…”The common thread in [special use] cases [is] an installation ‘exclusively for the accommodation of the owner of the premises . . . in consideration of private advantage.’”…Where public property “is constructed for the special use of the adjoining landowner, that special use imposes upon him the obligation to maintain the area of special use so as not to raise the spectre of peril to the traveling public.”[.]

Plaintiff argues that the exit from Borg Warner and merge lane onto Warren Road was created at the behest of, and for the benefit of, Borg Warner. In support of that position, Plaintiff has submitted numerous documents that were obtained in connection with the Morse Chain/Warren Road development project.  Plaintiff argues that these documents show that the intersection was created as part of the relocation of the Morse Chain business to this location, and as inducement for the relocation.

The documents show that beginning in early 1973, Borg Warner was involved in discussions with various county agencies concerning the relocation of Morse Chain/Borg Warner building to the Warren Road site. The included correspondence with Tompkins County Area Development Agency (TCAD) stating that “it is very important that we [Morse Chain/Borg Warner] have at least two access roads leading to and from the property,” and that a wider road would be needed at the plant entrance. Morse Chain made clear by letter that it would not be relocating until its requests were met. After additional negotiations, the TCAD arranged for Tompkins County to build an entrance from Warren Road free of charge. Plans were also made to widen Warren Road at the plant entrance.

Around 1980, the facility was planning an expansion and around the same time, the State and County were considering improvements to Warren Road. Plaintiff alleges that the redesign of Warren Road and the facility expansion went forward in coordination with each other. The development included adding the merge lane from the Borg Warner south exit driveway to Warren Road.

Plaintiff argues that the improvements which were made involving the merge lane and related improvements to the Borg Warner exit and Warren Road were designed and installed for the special use of Borg Warner. Defendant did not submit any evidence of its own on this issue, but argues that the records show that the re-design of Warren Road was done for the benefit of the community as a whole, and as part of a comprehensive development plan. Defendant claims that even though Borg Warner may have received some benefit, it was not done exclusively for Borg Warner. Further, Defendant avers that there is no evidence that Borg Warner uses this stretch of road differently than the general public.

The Court concludes that the evidence which has been submitted does suggest that the road design and construction was done at the request of Borg Warner, and for its benefit…While the whole road improvement may not have been for Borg Warner’s benefit, the targeted area of the merge lane was only used by Borg Warner. The correspondence related to the development references this particular area of the roadway, and only involves discussion of Borg Warner with respect to that. Notably, no other businesses use the south entrance except for Borg Warner, and in fact, use of the entrance requires a badge. Further, contrary to Borg Warner’s claim, it is at least circumstantially evident that the merge lane would be used differently by motorists accelerating from the Borg Warner facility than by motorists already on Warren Road. A merge lane, by its very nature, accommodates traffic attempting to enter the main roadway. The only merging traffic that could be using that stretch of roadway would be coming out of the gated exit at Borg Warner. Although motorists using Warren Road might conceivably use the merge lane to move around left turning cars, or avoid other obstructions, even in that instance it could not be said that the traffic coming from Borg Warner uses the merge lane in the same way as the general public.

Affording the Plaintiff every favorable inference, the Court concludes that a question of fact has been presented on the question of whether a “special use” was created for the benefit of Borg Warner[.]

And, as to proximate cause:

Assuming there was a duty that may have been owed by Borg Warner to the traveling public (by creating the condition, or by “special use”), liability would only be imposed if Borg Warner’s negligence in the discharge of that duty was the proximate cause of the accident and injuries. “It is axiomatic that proximate cause ordinarily is a question to be determined by the finder of fact.”…The court should only decide a question of proximate cause when there is no factual dispute, and only one conclusion which may be drawn from those facts…”When faced with a motion for summary judgment on proximate cause grounds, a plaintiff need not prove proximate cause by a preponderance of the evidence, which is plaintiff’s burden at trial. Instead, in order to withstand summary judgment, a plaintiff need only raise a triable issue of fact regarding whether defendant’s conduct proximately caused plaintiff’s injuries.”[.]

An accident reconstruction report was prepared by Travis A. Webster of the New York State Police following this accident, and was included in Defendant’s Motion for Summary Judgment…The Webster report concluded that the primary cause for the accident was failure of Kelly Elliott to exercise due caution at the intersection, and a contributing factor was driver inattention by Kelly Elliott. The report also concluded a secondary contributing factor was on the part of the cyclist in failing to perceive a hazard at this intersection. Borg Warner contends that the Webster report established, prima facie, its entitlement to summary judgment because of its conclusion that Kelly Elliot’s negligence in entering the merge lane without yielding, coupled with decedent’s actions, were the cause of the accident.

However, even if the Court were to assume that the decedent and driver were both negligent, in order for Borg Warner to succeed on a motion for summary judgment, it would have “to establish [its] ‘freedom from comparative fault as a matter of law.’”…If the movant fails to do that, the motion for summary judgment would be denied regardless of the insufficiency of the opposition papers…There can be more than one proximate cause of an accident[.]

*     *     *

The Webster report, relied upon by Borg Warner, assigned fault for the accident to both Kelly Elliott and the decedent. However, absent from the Webster report is any discussion or opinion as to whether Kelly Elliott’s “failure to exercise due caution” or “driver inattention” may have been contributed to by an improper design of the exit, and/or merge lane, or the improper placement of the yield sign. Those are the theories being advanced by the Plaintiff. The driver’s failure to exercise due caution implies the caution necessary as a result of the situation presented. In this case, Kelly Elliott may have not exercised the caution needed when approaching this intersection with its limited sight lines, and traffic. Further she may not have exercised due caution when confronted with a yield sign in the merge lane. The failure to exercise due caution does not rule out the possibility that design, maintenance or warning at the intersection and/or merge lane, or an improper placement of the yield sign could have also contributed to the accident. The Webster report, while setting forth some proximate causes, does not rule out the contributing causes alleged by Plaintiff against Borg Warner.

Bearing in mind that this is a summary judgment motion, and that such a motion should only be granted if there are no issues of fact, or other conclusions that could be drawn, the Court determines that Borg Warner has not met its prima facie burden on the issue of proximate cause, because the evidence it relies upon does not establish its freedom from some comparative fault[.]

Estate of Bowen v. Tri State Haulers, Inc., 2017 NY Slip Op 32017(U) (Sup. Ct. N.Y. Co. September 26, 2017)

Defendants moved for summary judgment dismissing the complaint.

Supreme Court summarized the facts:

This case arises out of an accident on August 26, 2010, in which the late Robert Emmett Bowen, III was fatally injured when, while cycling southward, he attempted to cycle around a Verizon truck parked in the west bus lane of Second Avenue, just north of 59th Street, and collided with a southbound vehicle traveling in the west traffic lane.  An investigation by the New York City Police Department concluded that Mr. Bowen was hit by the right rear tires of a 60-foot-long southbound flatbed trailer truck, owned by Tri State, and driven by Stair…The complaint alleges, as against all defendants, two causes of action sounding in negligence:  the first, for pain and suffering; the second, for wrongful death.

The controlling law:

Vehicle and Traffic Law (VTL) § 1103(b) provides that, where a vehicle is “actually engaged in work on a highway,” a plaintiff claiming to have been injured thereby may recover only by showing “a reckless disregard for the safety of others”; that is, a plaintiff must show a “conscious disregard for the safety of others”; that is, a plaintiff must show a “conscious disregard of ‘a known or obvious risk that was so great as to make it highly probable that harm would follow.”…The Verizon truck was parked pursuant to a utility manhole embargo permit, which was issued by the City of New York to allow Verizon employees to perform emergency work drying a wet splice that was accessible from a manhole located directly in back of the truck…The truck contained a generator which provided heat, through a chute, to dry the splice.  Accordingly, VTL § 1103(b) is applicable to plaintiffs’ claims against Verizon.

Verizon’s evidence:

Verizon has presented evidence that its truck was parked facing north, that is, facing the oncoming southbound traffic.  At the time of the accident, the truck’s headlights, flashing front lights, five lights on the front of the truck, and a flashing strobe light on top of the truck were all on…In addition, reflective orange traffic cones were in place next to the manhole, next to the truck on its east side, and behind the truck on the south side; and, a number of reflective traffic cones, with flags attached, were in place in the bus lane north of the truck…Accordingly, inasmuch as anyone cycling or driving south, either in the bus lane, or in the adjacent right hand lane, would have had ample warning of the presence of the truck, Verizon has made a prima facie showing that it did not act negligently, let alone recklessly.

Plaintiff’s “evidence”:

In opposition, plaintiffs speculate that the Verizon truck could have been parked closer to the curb, thus allowing passing cyclists to remain in the bus lane, and they complain that Verizon failed to create a safe passageway for cyclists to pass its truck.  Neither this speculation, nor this imputation of a duty beyond the duty to warn, suffices to avert dismissal of the complaint.

*     *     *

Tri State and Stair argue that, notwithstanding the police conclusion that the truck which struck Mr. Bowen was driven by Stair, there is no evidence that such was the case, and the conclusion of the police is based solely on Mr. Stair’s identification of the truck on a videotape of traffic captured on 57th Street and Fifth Avenue shortly after the accident.  Stair testified at his deposition that, in August 2010, he made numerous trips to New Jersey; that one of his two usual routes from Queens to the Lincoln Tunnel had him turning south from the 59th Street bridge onto one of the right-hand lanes of Second Avenue, and then turning west on 57th Street; and, that he was usually there at about 8:00 p.m., the time of Mr. Bowen’s accident.  He recalled that on one of his trips, he saw a parked Verizon truck performing work on the west side of Second Avenue between 59th Street and 60th Street.  Accordingly, Mr. Stair’s testimony, in conjunction with the video capture of his truck on 57th Street, shortly after the accident, shows that his truck was at the scene of the accident at approximately the time of the accident.  The police eventually identified both Stair and the Tri State truck on the basis of a statement by one M.D. Islam, who was interviewed at the scene of the accident.  Mr. Islam stated that he had been standing at the southwest corner of Second Avenue and 59th Street, and had observed that, when a cyclist attempted to cycle around the parked Verizon truck, and was alongside of it, he was hit by the side of a southbound black flat bed truck traveling in the west traffic lane to 57th Street, where it made a right turn.  The cab of Mr. Stair’s truck is white, but the flat behind it is black.

Evaluated the expert and other testimony:

Tri State and Stair present the expert of Robert Genna, who states that he reviewed the police files pertaining to the accident.  Mr. Genna, however, completely ignores the police records of Mr. Islam’s statement.  Mr. Genna opines that, in view of the traffic light patterns in the area, a truck exiting the 59th Street Bridge and turning left onto the right lane of Second Avenue could not be traveling southbound at 40 miles per hour, because, assuming that the truck had a green light exiting the bridge, it would have had to stop at a red light on Second Avenue and 59th Street.  Mr. Genna states that, in order to move down Second Avenue at the speed of traffic, a truck would have to drive from the bridge exit to the right lane of Second Avenue in three seconds, while, according to his calculations, a truck would take approximately 14 seconds, and reach a speed of 15-16 miles per hour, at which time the light at 59th Street would be red.  That opinion is expressly based upon an average typical tractor trailer acceleration rate.  It is not probative of either the acceleration rate of the Tri State truck, or the speed at which Mr. Stair drove past the Verizon truck.  Moreover, Mr. Stair had no specific recollection of his trip on the evening of the accident, other than that he noticed the Verizon truck.  It is possible, assuming that he came over the 59th St. Bridge, that he went uptown for some reason, and then came down on Second Avenue.  Mary Gustella stated at her deposition that, at the time of the accident, she was standing on the corner of Second Avenue and 59th Street, waiting for the light to change so that she could cross the street, and that, at that time, the light was green for southbound traffic, and heavy traffic was rapidly going past her on Second Avenue.

Tri State and Stair also argue that the finding, by a New York State Department of Motor Vehicles administrative law judge, that Stair did not violate VTL § 510 by failing to file a report of the accident, collaterally estops plaintiffs from arguing that Stair’s truck was involved in Mr. Bowen’s accident.  That argument fails, because no police witness appeared at the hearing and the administrative law judge’s opinion expressly states that “[t]here was no evidence at this hearing showing the factual basis on which police listed [Stair’s] vehicle as being involved in the accident.”…(emphasis supplied)

Concluding that:

In sum, there is circumstantial evidence that the Tri State truck was involved in the accident.  Circumstantial evidence may show negligence and causation, and thus suffice to avert dismissal…While plaintiffs may be unable to prove negligence, or even causation, at trial, at this stage of the action, dismissal would be premature.

Hernandez v. Kalpakis, 2013 NY Slip Op 34153(U) (Sup. Ct. Na. Co. December 23, 2013)

Supreme Court addressed a motion by defendants – automobile driver Kalpakis and his insurer, GEICO – to dismiss plaintiff’s personal injury claim arising out of an accident while plaintiff was riding his bicycle.

Supreme Court summarized the facts:

On October 13, 2012, the defendant James Kalpakis’ motor vehicle came into contact with the plaintiff while he was riding his bicycle. The accident occurred on a sidewalk in front of 2419 Hempstead Turnpike, Hempstead, New York as the defendant was exiting a parking lot. As a result of said accident, the plaintiff was injured and received medical treatment and incurred medical expenses. The plaintiff also sustained loss of income and earnings due to his inability to work and/or work full time.

At the time of this accident, the defendant’s vehicle was insured by the defendant GEICO under Policy Number 4234855163. A claim (Claim Number 042-326449-0101-020) was made by the plaintiff for no-fault benefits from the defendant GEICO under said policy.

The complaint:

According to the complaint, “the plaintiff …and/or his assignees” submitted claims pursuant to the New York State No-Fault Law, of the payment of his bills and benefits, as well as of his lost wages and benefits to the defendant GEICO…According to the plaintiff, “[s]aid losses are continuing and are covered up to the policy limit of $50,000 less amounts previously paid”…Plaintiff alleges that the “[c]laims submitted or ongoing have been ignored and all claims remain unpaid to date and have been improperly denied”[.]

Ultimately, plaintiff seeks a judgment including “both compensatory and exemplary [damages] against the defendants” in each of his three causes of action for personal injuries, property damage, and lost wages/benefits.

The pending motion:

In support of the instant motion, the defendants submit, inter alia, copies of some of the assignment of rights forms signed by the plaintiff each of which indicates that the plaintiff assigned to each provider “all rights, privileges and remedies to payment for healthcare services provided by the assignee”[.]

Pursuant to CPLR §3211(a)(3) and (7), “[a] party may move for judgment dismissing one or more causes of action asserted against him on the ground that:…(3) the party asserting the cause of action has not legal capacity to sue…or (7) the pleading fails to state a cause of action[.]”

As to standing to sue:

Initially, it is noted that standing and capacity to sue are related, but distinguishable legal concepts. Capacity requires an inquiry into the litigant’s status, i.e., its “power to appear and bring its grievance before the court”, while standing requires an inquiry into whether the litigant has “an interest in the claim at issue in the lawsuit that the law will recognize as a sufficient predicate for determining the issue”…Both concepts can result in dismissal on a pre answer motion by the defendant and are waived if not raised in a timely manner[.]

No Fault Regulations contemplate payment directly to an Eligible Injured Person (“EIP”) or his/her legal representative, unless said individual has executed an assignment, in which case payment shall be made directly to providers of health care services…In the absence of an assignment, a claim submitted by a health care provider must be deemed to have been submitted on behalf of the individual who has the right to be paid under the no-fault regulations. An insurer seeking dismissal pursuant to CPLR 3211(a)(7), on the ground that the claim has been assigned by the plaintiff EIP to a provider, bears the burden of demonstrating that there was an assignment from the EIP to a health care provider.

In this case, the defendant insurer has proffered documents that, it claims, demonstrate that plaintiff assigned his claims under the no-fault regulations to OrthoPro Services, Inc.; J. Rockman LAC, LMT; Vanguard Medical Imaging, P.C.; Professional Medical Healthcare Service; Branch Medical P.C.; Michael A. Bernstein, DC, PC; Goodman; and, Dr. Mehul R. Shah.

In opposition, counsel for the plaintiff failed to address the issue that the plaintiff lacks the capacity to sue GEICO on the basis of the assignments.

Concluding that:

It is well settled that the assignee of a cause of action has the right to sue for its enforcement free from any control or interference of the assignor…Ordinarily, the assignee is the real party in interest who alone can bring suit…That is, the assignor generally has no right to sue and it is only in cases where the assignor retains some protectable interest in the subject of the assignment and the assignee refuses or neglects to bring suit to recover the claim, that the assignor is permitted to bring an action…However, even under those circumstances, such an action would be a derivative and the recovery will be in favor of the assignee to the extent of the assignee’s interest[.]

The record demonstrates that the plaintiff assigned his rights to receive reimbursement for no-fault medical benefits to each of the various providers…and, since there is no evidence herein that the plaintiff retained any interest in the subject of the assignment of his no-fault benefits, this Court finds that plaintiff’s causes of action seeking reimbursement of said medical expenses are dismissed under CPLR §3211(a)(7). The defendants have demonstrated that the plaintiff, having assigned his rights, may no longer submit any claims on his behalf or seek reimbursement of medical expenses from GEICO. The plaintiff does not have the requisite standing to assert said claims[.]

And, as to the claim for punitive damages against the driver:

Punitive damages are available to vindicate a public right only where the actions of the alleged tortfeasor constitute either gross recklessness or intentional, wanton or malicious conduct aimed at the public generally, or were activated by evil or reprehensible motives[.]

Here, it remains unclear from the allegations of the complaint as to the basis of plaintiff’s application for punitive damages against defendant Kalpakis. However, in his affirmation in opposition, counsel for the plaintiff submits that “defendant . . . has failed to establish that his actions did not rise to a level where gross negligence existed and punitive damages may be awarded”…It appears that the plaintiff seeks an award of punitive damages based upon his allegation that defendant may have been grossly negligent in the happening of the accident[.]

To sustain a claim for punitive damages in tort, one of the following must be shown: intentional or deliberate wrongdoing, aggravating or outrageous circumstances, a fraudulent or evil motive, or a conscious act that willfully and wantonly disregards the rights of another…The complaint at bar fails to advance any allegations supporting an entitlement to the recovery of punitive damages from the defendant Kalpakis.