Opinion
6364/2005.
Decided May 8, 2007.
Alan A. Tarzy — Law Office, New york, Attorney/Firm for Plaintiff.
Gambeski, Ambrose Farole, New york, Attorney/Firm for Defendant.
Upon the foregoing papers, defendants Manuel A. Nunez and Atlantic Paratransit's (hereinafter collectively referred to as "Nunez") motion for summary judgment on the issue of liability is denied for the reasons set forth herein.
This is an action to recover damages for personal injuries allegedly sustained by plaintiff as a result of a motor vehicle accident involving two vans which occurred on March 23, 2004 on First Avenue near its intersection with East 94th Street, New York, New York. Plaintiff was a passenger in the defendant Nunez's vehicle. The accident occurred when defendant Carlos A. Diaz ("Diaz") operating a vehicle owned by defendant Jose M. Agramonte ("Agramonte") rear-ended defendant Nunez's vehicle while the Nunez van was double parked at the accident location. Defendants Diaz and Agramonte failed to appear for their Court-ordered depositions.
Plaintiff testified that the accident occurred in front of the building where she lived, 1830 First Avenue, New York City. Plaintiff saw the Access-A-Ride van pulling up in front of a parking lot directly in front of her building. She testified that the driver double-parked. Plaintiff also testified that as soon as she sat down in the van and was in the process of being assisted by the driver in putting on her seatbelt, the van was struck from behind. Defendant Nunez testified that he was driving a van which was used for the transportation of the disabled. He conducted a pre-trip inspection of the vehicle that morning and completed a document referred to as a "white sheet" which document does not contain any indication that he observed a problem with a mechanical or lighting portion of the vehicle. Nunez testified that he did not find any problems with the vehicle. Defendant Nunez agrees that he double-parked on First Avenue in front of 1830 First Avenue and that he remained in his vehicle for about 5 minutes waiting for the plaintiff. When the plaintiff arrived, he stood up to assist her and she came into the van and sat down. He filled out his "trip ticket" and as plaintiff was signing the "trip ticket", the accident occurred. Plaintiff never actually completed signing the "trip ticket" before the accident occurred. Defendant agreed that it was part of his duties to assist the plaintiff with her seatbelt, but at the time the accident occurred he had not had the opportunity to assist her with it. However, plaintiff testified that she tried to put her seatbelt on but it was stuck and the driver was assisting her, but the van struck before she could do anything.
It is undisputed that the Nunez vehicle was double-parked at the time of the accident and that it was rear-ended by defendant Diaz's vehicle. For purposes of this decision, moving defendants also concede that they violated a statute by double-parking which constitutes negligence per se. Nonetheless, defendants argue that they are entitled to judgment as a matter of law as the act of Nunez double parking was not the proximate cause of this accident. Plaintiff opposes the motion arguing that there are issues of fact with regard to whether defendants' negligence in double-parking their vehicle and in failing to provide plaintiff with a working seatbelt were contributing proximate causes of the accident and plaintiff's injuries.
In support of their position, defendants rely on the case of Sheehan v. The City of New York, 40 NY2d 496 (1976). In Sheehan, a MABSTOA bus stopped to discharge passengers in violation of traffic regulations. While stopped, the MABSTOA bus was hit in the rear by an out of control sanitation truck whose driver testified that his brakes failed. MABSTOA's rules had required its driver to pull into the bus stop and up to the curb to discharge passengers, but the driver instead did so from the travel lane itself. The driver of the MABSTOA bus testified that he could not pull into the designated bus stop because there were vehicles parked there. The Court of Appeals held that the bus driver's gradual stopping in the traveling lane of the street to discharge and pick up passengers, rather than using a designated bus stop at the corner, was not the proximate cause of the passenger's injuries, in that the result would have been the same if the bus driver had used the designated stop and pulled out into the traveling lane, or if the bus had merely stopped in the traveling lane prior to entering the intersection without discharging or picking up passengers.
"Assuming the designated stop was available for the bus's use, if it has in fact stopped there and, having discharged or boarded its passengers, pulled back into the traveling lane before proceeding across the intersection, it would, properly, have been in exactly the same position at which it found itself when it was hit. Or, if observing no prospective passengers in the stop and having none who wished to alight at that corner, the bus driver decided not to go through the proper practice of pulling in and out of the stop, but, preparatory to crossing, had merely stopped in the traveling lane at the corner before doing so, his bus would have been in precisely the same position. In short, the bus at the time of the accident appears merely to have at one point in the street where it had a right to be (the traveling lane) rather than at another point in the street where it had a right to be (the bus stop).
We conclude, therefore, as a matter of law, that the conceded negligence of the sanitation truck was the sole proximate cause of the injuries and that the continued presence of the bus in the traveling lane at the time it was struck merely furnished the condition or occasion for the occurrence of the event rather than one of its causes". 40 NY2d at 502-503.
The Court further held that even if stopping the bus in the traveling lane was a proximate cause of the accident, the failure of the truck's brakes might have been an independent, supervening cause.
Nine years after Sheehan, the Court of Appeals was confronted with a case in which two buses that had no need to stop in the "breakdown lane" (shoulder) of the Long Island Expressway nonetheless parked there. In so doing, the bus drivers violated VTL § 1201(a)(1)(i), Which prohibited stopping, standing or parking on an expressway except in an emergency. Later, a truck went out of control due to driver negligence or mechanical problems (or both) and collided with the bus. A majority of the Appellate Division ruled that the case was distinguishable and that liability could be imposed, and the Court of Appeals unanimously affirmed Dowling v. Consolidated Carriers Corp., 65 N.Y.799 (1985) The Appellate Division majority in Dowling noted two distinctions as compared to Sheehan: The situation was "fundamentally different" because here "the buses were stopped where they had no right to be, in direct violation of statute and regulation, and where vehicles would have a right to be only in unusual, carefully limited circumstances" (478 NYS2d 883 {103 AD2d 675} . 885); and, `[t]he statute and the regulation were clearly designed with an awareness, based on general experience, that from time to time vehicles on high speed state highways go on to the shoulder under circumstances that make the presence of standing and parked vehicles a source of danger" (478 NYS2d at 886). By stopping where they did, the bus drivers had, in essence, taken away a cushion or margin of safety that the Legislature had intended drivers to have and that here could have been used to regain control over the truck.
Defendants argue that the holding in Sheehan applies to the facts of this case and warrant dismissal. Plaintiff argues that there are issues of fact with respect to proximate cause. Plaintiff contends that the accident would not have occurred but for the fact that defendants' van was double parked for approximately 5 minutes in a lane for moving traffic.
The court's function on motion for summary judgment is issue finding rather than issue determination. Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395 (1957). Since summary judgment is a drastic remedy, it should not be granted where there is any doubt as to the existence of a triable issue. Rotuba Extruders v. Ceppos, 46 NY2d 223 (1978). The movant must come forward with evidentiary proof in admissible form sufficient to direct judgment in its favor as a matter of law. Zuckerman v. City of New York, 49 NY2d 557, 562 (1980). Thus, when the existence of an issue of fact is even arguable or debatable, summary judgment should be denied. Stone v. Godson, 8 NY2d 8, (1960); Sillman v. Twentieth Century Fox Film Corp., supra .
The proponent of a motion for summary judgment carries the initial burden of production of evidence as well as the burden of persuasion. Alvarez v. Prospect Hospital, 68 NY2d 320 (1986). Thus, the moving party must tender sufficient evidence to demonstrate as a matter of law the absence of a material issue of fact. Once that initial burden has been satisfied, the "burden of production" (not the burden of persuasion) shifts to the opponent, who must now go forward and produce sufficient evidence in admissible form to establish the existence of a triable issue of fact. The burden of persuasion, however, always remains where it began, i.e., with the proponent of the issue. Thus, if evidence is equally balanced, the movant has failed to meet its burden. 300 East 34th Street Co. v. Habeeb, 683 NYS2d 175 {248 AD2d 50} (1st Dept. 1997).
Defendants' motion is denied. The case of Sheehan is distinguishable from the facts of this case. It is a question of fact whether the undisputed fact that defendant Nunez remained double-parked for approximately five minutes was a proximate cause of this accident. In Sheehan, the Court found that the result would have been the same or, in other words, that the accident would have occurred nonetheless, because the bus was in precisely the same position it would have been at which it found itself when it was hit. Here, the same cannot be said to be true. The fact that by defendant's own admission, he was double-parked for approximately five minutes, does not lead to the conclusion that the accident would have happened whether he had been double-parked or not.
This constitutes the decision and order of this Court.