Supreme Court of the State of New York
Appellate Division:First Department
BRIEF FOR PLAINTIFF-RESPONDENT
DICK BAILEY SERVICE (212) 608-7666 (718) 522-4363 (516) 222-2470 (914) 682-0848 Fax: (718) 522-4024
1-800-531-2028 - Email: appeals@dickbailey.com -Website: www.dickbailey.com
Supreme Court, New York County, Index No. 400725/12
SWITZERLAND GREEN,
Plaintiff-Respondent,
-against-
METROPOLITAN TRANSPORTATION AUTHORITY BUS
COMPANY, and ISAEL REYES,
Defendants-Appellants,
TYESE LAWS and SAMANTHA SANTIAGO,
Defendants-Respondents.
TO BE ARGUED BY:
LAURENCE M. SAVEDOFF, ESQ.
LAURENCE M. SAVEDOFF, PLLC
Attorneys for Plaintiff-Respondent
3234 White Plains Road
Bronx, New York 10467
(718) 515-0020
lmsavedoff@hotmail.com
[Reproduced on Recycled Paper]
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES .................................................................................... ii
PRELIMINARY STATEMENT................................................................................1
QUESTIONS PRESENTED......................................................................................3
STATEMENT OF FACTS ........................................................................................4
ARGUMENT .............................................................................................................7
Point I.
Defendants-appellants MTA and Isael Reyes motion
for summary judgment on the issue of liability was properly denied .......................7
Point II.
The motion court, in entertaining defendants-appellants motion to
reargue the decision and order dated October 7, 2013, properly adhered
to its original decision denying MTA and Isael Reyes
motion for summaryjudgment on the issue of liability............................................14
Point III.
The motion court properly denied defendants-appellants
motion to renew as there was no new or additional evidence
unknown to the MTA and Isael Reyes when their original
cross motion for summary judgment was made ......................................................17
CONCLUSION.......................................................................................................21
ii
TABLE OF AUTHORITIES
Bonilla v. Abdullah 90 AD3d466 (1st Dept. 2011)....................................................9
Burns v. Mastroianni 173 AD2d 754 (2nd Dept. 1991)..............................................7
Caban v. Vega 226 AD2d 109 (1st Dept. 1996).................................................15, 16
Cannistra v. Gibbons 224 AD2d 570 (2nd Dept.1995)............................................18
Carillo v. PM Realty Group 16 AD3d 611 (2nd Dept. 2005) ...................................14
Crawford -Dunk 83 AD3d 764 (2nd Dept. 2011) ....................................................11
Cruz v. MTLR Corp. 111 AD3d 568 (1st Dept. 2013)......................................15, 16
DeHavilland v. Transit Authority 9 Misc. 3d 1127A
(Sup. Ct. NY Cty 2005) .........................................................................................8, 9
Edwards v. New York City Transit Authority 37 AD3d 157
(1st Dept. 2007).....................................................................................................8, 12
Esposito v. The Port Authority of New York and New Jersey 2011
NY Misc. LEXIS 3279 (Sup Ct NY Cty 2011) .......................................................19
Garcia et. al v. Strawgate (Sup. Cty 2009) ................................................................7
Henry v. Peguero 72 AD3d 600 (1st Dept. 2010) ..............................................17, 18
Hon v. Allstate Insurance Company 2011 NY Misc LEXIS 5448
(Sup. Ct NY Cty 2011) ............................................................................................17
Jones v. 170 East 92nd Street Owners Corp. 69 AD3d 483 (1st Dept.
2010) ........................................................................................................................18
Lee v. Ogden Allied Maintenance Corp. 226 AD2d 226
(1st Dept. 1996).........................................................................................................18
Liu v. Cheng 82 AD3d 405 (1stDept. 2011) ..............................................................8
iii
Macias v. New York City Transit Authority 240 AD2d 196
(1st Dept. 1997).........................................................................................................18
Marini v. Lombardo 12 AD3d 545 (2nd Dept. 2005) ...............................................14
Markowitz v. Lewis 40 AD3d 371 (1st Dept. 2007) ................................................12
Martinez v. Academy Bus LLC 51 AD3d 401 (1st Dept. 2008)..............................12
Pahl Equipment Corp. v. Kassis 182 AD2d 22 (1st Dept. 1992) .......................14, 17
Pena v. Slater 100 AD3d 488 (1st Dept. 2012) ..................................................15, 16
Quiles v. Greene 291 AD3d 345 (1st Dept. 2002) ...................................................11
Rabassa v. Caldas 306 AD2d 137 (1st Dept. 2003) ...................................................8
Rhodes v. United Parcel Service 33 AD3d455 (1st Dept. 2006) .............................12
Segall v. Heyer 161 AD2d 471 (1990) ....................................................................18
Taub v. Art Students League of New York 63 AD3d 630
(1st Dept. 2009)...................................................................................................17, 18
Tishman Construction Corp. of New York v. City of New York
280 AD2d 374 (1st Dept. 2005)................................................................................17
Tossas v. Ponce 18 MIsc.3d 1132A (Sup. Ct. Bx Cty 2004) ..................................11
Trevino v. Castro 256 AD2d 6 (1st Dept. 1998) ......................................................11
1
BRIEF ON BEHALF OF PLAINTIFF-RESPONDENT
SWITZERLAND GREEN
PRELIMINARY STATEMENT
This brief is respectfully submitted on behalf of plaintiffs-respondent
Switzerland Green in opposition to the appeal of defendants-appellants Metropolitan
Transportation Authority (hereinafter referred to as “MTA”) and Isael Reyes from the
Order of the Supreme Court, New York County (Hon. Arlene Bluth) entered October
15, 2013 which denied MTA and Isael Reyes cross motion for summary judgment and
dismissal of plaintiff-respondent’s complaint and all cross claims as asserted against
MTA and Isael Reyes. (R. 6-12) and in further opposition to the appeal of the
defendants-appellants MTA and Isael Reyes from the Order of the Supreme Court,
New York County (Hon. Arlene Bluth) entered March 17, 2014 which denied its
motion to renew, granted reargument, and upon reargument, adhered to its prior
determination denying the defendants-appellants MTA and Isael Reyes motion for
summary judgment dismissing plaintiff’s complaint. (R.18-20)
In entertaining MTA and Isael Reyes original motion for summary judgment,
the motion court properly found, in denying the motion for summary judgment, that
defendants-appellants MTA and Reyes did not satisfy their burden of establishing
entitlement to judgment as a matter of law and the burden never shifted to the
opposition to the cross motion. Contrary to their contentions, defendants-appellants
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did not demonstrate the absence of triable issues of fact as whether the operator Isael
Reyes acted reasonably under the “emergency circumstances” and took appropriate
actions to avoid the subject accident.
Moreover, in eventually denying defendants-appellants motion to renew and
reargue the aforementioned order of the Honorable Justice Bluth dated October 7,
2013, correctly adhered to its original determination denying the motion for summary
judgment. The motion court did not overlook or misapprehend facts or law or
mistakenly arrive at its earlier decision. They properly determined that it was a jury
question as to whether the MTA’s bus operator acted reasonably under the
circumstances including whether the jury believes there ever was a “phantom vehicle”
that cut the bus off and whether there was anything the bus operator could have done
anything to avoid the subject accident. Furthermore, the motion court properly denied
the portion of the motion seeking renewal finding the type of “emergency situation” as
contemplated by the defendants-appellants is not the type which lends itself to
summary judgment and is a jury question. (R.20) Furthermore, the supposed
information contained in the supplemental affidavit of bus operator Isael Reyes and
the photographs provided in support of the motion to renew were not facts or
information unknown to the defendants-appellants at the time the original motion was
made. Accordingly, it was properly not considered in support of the motion to renew
argument of the order of the Honorable Justice Bluth dated October 7, 2013. In light
3
of the foregoing, the Orders appealed from should be affirmed.
QUESTIONS PRESENTED ON APPEAL
Did the Supreme Court properly deny defendant-appellant MTA and Isael
Reyes motion for summary judgment dismissing plaintiff-respondent’s complaint and
all cross claims against them?
ANSWER: YES
Did the defendants-appellants MTA and Isael Reyes satisfy their initial burden
demonstrating the absence of any triable issues of fact concerning whether they were
negligent in the operation of their bus and whether such negligence caused and/or
contributed to the plaintiffs-respondents injuires?
ANSWER: NO
Did the defendants-appellants MTA and Isael, in moving for summary
judgment based upon being faced with an emergency situation, demonstrate that they
acted reasonably under the existing circumstances, and in acting reasonably, clearly
demonstrated that there were no evasive measures or alternatives they could have
taken in the operation of their bus to avoid the accident?
ANSWER: NO
Did the motion court, in entertaining the defendants-appellants motion seeking
reargument of the decision and order dated October 7, 2013, correctly adhere to its
4
original determination which denied the cross motion of MTA and Isael Reyes for
summary judgment on the issue of liability?
ANSWER: YES
Did the motion court properly deny the defendants-appellants MTA and Isael
Reyes motion seeking renewal of the decision and order dated October 7, 2013 which
denied their motion for summary judgment?
ANSWER: YES
STATEMENT OF FACTS
On April 8, 2011, plaintiff-respondent, Switzerland Green, was a passenger on a
bus owned by defendant-appellant MTA and operated by defendant-appellant Isael
Reyes which was involved in an accident with the vehicle owned and operated by
defendants-respondents Tyese Laws And Samantha Santiago. As a result, plaintiff-
respondent Switzerland Green was caused to sustain serious personal injuries.
Plaintiff testified at a 50 Hearing (conducted by the City of New York) that she
was on her way home from work at the time of the accident. (R.21-22) She was
seated in last row of the bus and was asleep when the accident occurred. (R.68) When
she awoke, she saw a car trapped by the bus on side where she was sleeping.
Specifically, the car was trapped between the bus and the median.
Meanwhile, in a sworn affidavit (R.115-116) , the operator of the vehicle, a
2000 Oldsmobile – defendant-respondent Tyese Laws, stated that she was traveling
5
northbound on the Bruckner Expressway, Bronx, New York “as an MTA bus swerved
into her lane and pinned her vehicle against the wall.” (R.115) In his own sworn
affidavit (R.171-172) bus operator Isael Reyes stated in pertinent part that he was
proceeding in the right lane at Bruckner Boulevard at approximately 15-20 mph.
There were two lanes for traffic in the direction he was proceeding and a service lane
to the right of the right lane. There was traffic behind his bus and to its left. As per
Isael Reyes, a red van supposedly jumped the guard rail in order to enter the
Expressway, coming in front of the bus. As a result, he immediately moved the bus to
the left in order to avoid the red van. As a result, the bus came into contact with the
vehicle traveling in the left lane. (R.171-172)
Procedurally, this action was commenced by service of a summons and
complaint against the defendants. Issue was joined on behalf of defendant-appellant
MTA and Isael Reyes by service of an answer on or about November 18, 2011. Issue
was joined on behalf of defendants-respondents Tyese Laws and Samantha Santiago
on or about November 22, 2011. (R.29-38, 131-141) Initially, defendants-
respondents Tyese Laws and Samantha Santiago moved for summary judgment on the
issue of liability. (R.21-117) Thereafter, defendants-appellants MTA and Isael Reyes
cross moved for summary judgment on the issue of liability, which also provided
opposition to the Laws/Santiago motion. (R.117-174) Plaintiff- respondent,
Switzerland Green, submitted opposition to the defendant-respondent Laws/Santiago
6
motion and opposition to the cross motion of the defendants- appellants, MTA and
Isael Reyes. (R. 236) Reply affirmations were submitted by defendants-respondents
Tyese Laws and Samantha Santiago (R.264-285) as well as by defendants-appellants
MTA and Isael Reyes (R.264-285)
The Decision and Order of the Honorable Arlene P. Bluth was entered in the
Clerk’s office on October 8, 2013 and served with Notice of Entry on or about
October 15, 2013. (R.6-12) The decision granted the motion of the defendants-
respondents Tyese Laws and Samantha Santiago and denied the cross motion of
defendants-appellants MTA and Isael Reyes. On or about November 1, 2013,
defendants-appellants MTA and Isael Reyes moved to renew and reargue Justice
Bluth’s decision dated October 7, 2013. (R.286-335) In opposition, defendants-
respondents Laws/Santiago and plaintiff-respondent Switzerland Green argued that
the portion of the motion seeking reargument should be denied because the motion
court did not misconstrue the facts or misapply the law and the portion of the motion
seeking renewal should also be denied because defendants-appellants MTA and Isael
Reyes did not offer any new evidence. (R.340-370)
By order of the Honorable Justice Bluth dated March 4, 2014, the motion court
granted reargument, but upon reargument, adhered to its original decision. They
further denied the portion of the motion seeking renewal. (R.18-20) The within appeal
then ensued. (R.4, 16)
7
ARGUMENT
POINT I
Defendants-appellants MTA and Isael Reyes motion
for summary judgment on the issue of liability was properly denied.
The law is well settled and clear that a driver is negligent in failing to see that
which under the facts and circumstances he should have seen by the proper use of his
senses. The question of whether the defendant satisfied this duty of care in operating
his vehicle is a jury question. The standard to be applied in deciding a motion for
summary judgment as a matter of law was whether the trial court could find that by no
rational process could the trier of facts base a finding in favor of the party opposing
the
motion. Burns v. Mastroianni 173 AD2d 754 (2nd Dept. 1991), Garcia et. Al v.
Strawgate (Sup. Cty 2009)
Application of the common law emergency doctrine is often used to negate a
defendant’s negligence where the defendant is confronted with a sudden and
unexpected circumstance which compels him or her to make a quick decision without
having an opportunity to contemplate an alternative course of action, so long as the
emergency situation was not brought about or contributed to by the defendants own
negligence. A party requesting the emergency instruction is entitled to have the jury so
charged if some evidence of a qualifying emergency is presented. However, where
8
the manner in which events unfolded leaves open the possibility that a defendant
should have seen the other vehicle in enough time to avoid the accident, summary
judgment must be denied. Edwards v. New York City Transit Authority 37 AD3d 157
(1st Dept. 2007); Rabassa v. Caldas 306 AD2d 137 (1st Dept. 2003); Liu v. Cheng 82
AD3d 405 (1st Dept. 2011); DeHavilland v. Transit Authority 9 Misc. 3d 1127A (Sup.
Ct. NY Cty 2005).
In Rabassa supra., the First Department found that summary judgment was
properly denied since questions of fact existed respecting the applicability of the
emergency doctrine, including whether the actions of defendant in quickly moving his
vehicle into the left lane of traffic were reasonable, how long the defendant’s vehicle
was in the left lane before hitting the plaintiff’s vehicle and whether the defendant
operator should have seen plaintiff’s vehicle in time to avoid the collision. Likewise
in the Liu supra. case, summary judgment based upon the emergency doctrine was
denied where defendant O’Reilly contended that codefendant Cheng was solely liable
for the accident as his vehicle crossed over a double yellow line in violation of NYS
Vehicle & Traffic Law 1126(a) and that O’Reilly was not required to anticipate that a
vehicle traveling in the opposite direction would cross over into oncoming traffic.
Therein, the court found that O’Reilly failed to establish his entitlement to judgment
as a matter of law, because although demonstrating the existence of an emergency
situation, there is no evidence with respect to what, if any, reasonable action O’Reilly
9
took to avoid the accident. Specifically, the appellate court found Cheng raised triable
issues of fact as to whether there was sufficient time interval between the crossover of
the Cheng vehicle and the collision for O’Reilly to have taken reasonable steps to
avoid the collision. See also Bonilla v. Abdullah90 AD3d466 (1st Dept. 2011).
In Dehavilland supra. the bus operator avoided a collision with an unidentified
taxi that allegedly cut in front of the bus. The operator affirmed that the bus lane was
free and not congested and that often a car steps in and drives in the bus lane when
drivers see it empty to get ahead of the cars. Accordingly, based on these facts, it
cannot be said that, as a matter of law, the operator of the bus was not negligent in
failing to foresee that another driver may attempt to switch into his lane. Therein,
defendants’ motion for summary judgment was denied as the bus operator admitted
that cars often changed lanes and it was not an unexpected occurrence for them to do
so. Furthermore, the court also found a question of fact existed as to the rate of speed
the bus operator was traveling at the time of the accident, particularly in light of the
severity of the plaintiff’s injuries coupled with the injuries sustained by the bus
operator which were incurred when the operator brought the bus to an immediate stop.
Analogizing to the case at bar, there are certainly genuine issues of fact as to
whether this “phantom vehicle” even exists, and if so, what its actions really were,
how long before the accident the MTA operator Isael Reyes first saw it, if Isael Reyes
could have taken steps other than to swerve into the left lane of traffic and strike the
10
codefendants vehicle considering that he had enough time to arguably see it go over
the barrier and cross the full shoulder lane of traffic before it even came into his lane
of traffic. (see MTA accident diagram (R.114) and Isael Reyes affidavit (R.171-172)).
Moreover, there are questions to be determined by a jury (and not on a motion for
summary judgment) as to whether the bus operator was traveling at unsafe rate of
speed and inattentive considering the traffic conditions at the time and whether such
speed and inattentiveness prohibited him from merely bringing his vehicle to stop in
his lane without veering into the codefendants left lane of traffic where it was not clear
to do so, whether he had time to check whether traffic in the left lane was clear before
veering into it to supposedly avoid a questionable “phantom vehicle” or whether he
could have switched to the lane to his right where traffic may have been clear to avoid
the alleged “phantom vehicle”. These are all issues that can only be decided by a jury
at trial to determine whether the defendant bus operator 1) was faced with an
emergency situation not of his own doing and which was unavoidable and 2) whether
the situation was one where the bus operator could have taken reasonable steps to
avoid this accident and was comparatively negligent, even if 1%, in causing and/or
contributing to the accident.
Moreover, the Appellate Division, First Department has continually held that
“triable issues of fact exist on the applicability of the emergency doctrine” where the
conflicting versions of the events provided by the parties reveal issues of disputed
11
material facts involving the time interval between the cross over and the impact, the
condition and position of the plaintiff’s vehicle and the ability of the defendant to have
avoided impact by reducing speed…” Quiles v. Greene 291 AD3d 345 (1st Dept.
2002); Tossas v. Ponce 18 MIsc.3d 1132A (Sup. Ct. Bx Cty 2004). In Quiles supra.
the action arose from two successive car collisions involving three vehicles. After the
first collision, plaintiff’s vehicle was caused to cross over into the oncoming lane of
traffic. Plaintiff Quiles testified that he was driving a truck southbound in the right
lane when the vehicle driven by the defendant Greene cut into his lane and suddenly
stopped, causing Quiles to rear end the Greene vehicle, cross the southbound center
and left lanes and astride the metal center divider. Quiles truck, now protruding into
the northbound lane, was struck by the vehicle driven by defendant Samuels.
Plaintiff Quiles specifically claimed that his truck came to a full stop across the
divider and that 15 seconds elapsed before Samuel struck him. In contrast, Samuels
testified at his deposition that the Quiles vehicle was only visible to him for a matter
of seconds prior to the impact. Likewise, in similar cases, the court has held that,
“…to the extent there had been an interval seconds between the
cross over and the collision, there is a triable issue as to whether
the defendant driver was confronted with an emergency, and if
not, whether he took reasonable steps to avoid the collision…”
see also Trevino v. Castro 256 AD2d 6 (1st Dept. 1998); Crawford
-Dunk 83 AD3d 764 (2nd Dept. 2011).
12
In Edwards supra., the First Department affirmed denial of a motion for
summary judgment based upon the emergency doctrine where there was a disputed
issue of fact as to whether a bus driver’s only recourse was to stop short. The bus
driver testified at his deposition that, after picking up some passengers, he proceeded
in the lane closest to the curb at a speed of two to five miles per hour, but a car in the
left lane, moving about 40 mph, cut in front of him at a distance of between one to
three feet, thereby compelling the bus operator to apply the brakes and stop short. By
contrast, the plaintiff testified the bus was driving fast until it stopped suddenly while
approaching the bus stop. These contradictory versions of events leading up to the
stop raise an issue of fact, thereby requiring denial of the summary judgment motion.
Summary judgment must be denied when there are questions of fact as to the
applicability of the emergency doctrine, including whether the defendant saw that
which was to be seen and took all appropriate measures to avoid the accident, whether
the defendant operator was driving at a safe speed considering the conditions at the
time, whether the defendant operator applied his brakes in a timely fashion. Rhodes v.
United Parcel Service 33 AD3d455 (1st Dept. 2006); Martinez v. Academy Bus LLC
51 AD3d 401 (1st Dept. 2008). In the case of Markowitz v. Lewis 40 AD3d 371 (1st
Dept. 2007), the court went even so far as to find questions of fact as to the
applicability of the emergency doctrine when the defendants vehicle came into contact
with a minivan which engine died and was stopped with its hazard lights on. Therein,
13
the court found triable questions as to when the minivan first became observable by
the defendant operator, whether the minivan’s hazard lights were flashing, whether
defendant maintained a safe distance behind the vehicle in front of him and whether
he acted reasonably under the circumstances in applying his brakes as opposed to the
opportunity to switch out of that lane to avoid the collision with the stopped minivan.
Herein, even at this juncture without the benefit of depositions or discovery,
there are conflicting versions between defendant operator Isael Reyes and defendant
operator Tyese Laws. Foremost, MTA operator Isael Reyes is blaming this accident
on a “phantom vehicle” which allegedly and incredulously jumped a barrier and
immediately cut across the shoulder lane of traffic and then into the bus lane of traffic
in an instant. Meanwhile, the defendant operator Tyese Laws and the plaintiff are
unaware of the existence of this so called “phantom vehicle”, and at a minimum and as
will even be more the case after depositions are conducted, there are certainly
credibility issues concerning the conflicting versions of the accident and the existence
of a so called “phantom vehicle” which can only be addressed by a jury at trial. Thus,
summary judgment in favor of the MTA and Isael Reyes is unwarranted.
14
POINT II
The motion court, in entertaining defendants-appellants motion to
reargue the decision and order dated October 7, 2013, properly adhered
to its original decision denying MTA and Isael Reyes motion for summary
judgment on the issue of liability.
Motions for reargument are addressed to the sound discretion of the court which
decided the prior motion and may only be granted upon a showing that the court
overlooked or misapprehended facts or law or mistakenly arrived at its earlier
decision. Pahl Equipment Corp. v. Kassis 182 AD2d 22 (1st Dept. 1992), Marini v.
Lombardo 12 AD3d 545 (2nd Dept. 2005); Carillo v. PM Realty Group 16 AD3d 611
(2nd Dept. 2005). Herein, the motion court, in entertaining the motion to reargue,
properly adhered to its prior determination denying the defendants-appellants motion
for summary judgment. In moving to reargue, it is the MTA/Reyes who completely
misunderstand the applicable law herein. In their moving papers, they incorrectly
claim the motion court erred because “the standard for determining if a driver’s
actions qualify under the emergency doctrine is whether the driver’s actions are
reasonable under the circumstances…the standard is not whether the driver should
take alternative actions.” Where the MTA/Reyes misconstrue the law (as the motion
court properly interpreted it) is they fail to understand, as the Court did in denying
their summary judgment motion, that the “reasonableness of the drivers actions” are
determined based upon whether there was alternative action the operator could have
15
taken to avoid the accident. The reasonableness of the driver’s actions are predicated
on whether he could have reasonably avoided the accident. In this case, the motion
court in originally denying the motion for summary judgment and then adhering to its
determination, properly opined that there were issues of fact concerning the
“reasonableness of the bus operator” in that he did not attempt to pull over to the right
lane rather than swerve into traffic in the left lane, or in the alternative, whether he
could have brought the bus to stop within his own lane to avoid the so called
“phantom vehicle”. The motion court
(as defendants-appellants contend) “did not create their own scenarios of whether the
bus operator Reyes actions were reasonable and he could avoided the subject accident
with defendant Laws/Santiago vehicle. There are disputed issues of fact as to whether
bus driver’s only recourse was to swerve into the left lane of traffic at the time when
there was ongoing traffic and strike the defendants-respondents Laws/Santiago
vehicle.
In support of the within appeal, the defendants-appellants MTA and Isael Reyes
erroneously rely on the cases of Pena v. Slater 100 AD3d 488 (1st Dept. 2012), Cruz v.
MTLR Corp. 111 AD3d 568 (1st Dept. 2013) and Caban v. Vega 226 AD2d 109 (1st
Dept. 1996) They improperly rely on these cases to support their contention that
speculation concerning possible accident avoidance measures of defendants faced with
emergency situations is insufficient to defeat a motion for summary judgment based
16
upon the “emergency doctrine”. All three of these cases are clearly distinguishable
from the case at bar in that we are dealing with totally different emergency situations
faced. Foremost, in Pena supra. and Cruz supra. we are dealing with operators who
suddenly and instantaneously crossed over into the opposite direction of travel leaving
the operator of the vehicle traveling in the proper direction no possible way to avoid a
head on collision. In Caban supra., the plaintiff’s vehicle struck a vehicle. On the
force of impact, this vehicle richocheted and struck the defendant’s vehicle without
any notice. These scenarios are completely different form this case where we are
dealing with “a questionable phantom vehicle which no one other than the bus
operator saw and which supposedly jumped a barrier and cut directly in front of the
bus” as well as issues of fact concerning reasonable evasive actions the bus operator
could have taken to avoid the accident consisting of bringing the bus to a stop without
leaving his lane of travel or switching to the right lane of traffic which was to his right
as per the MTA’s own accident diagram contained in their own accident report.
(R.114) The cases relied upon by the defendants-appellants MTA and Isael Reyes are
certainly distinguishable from the case at bar.
In light of the foregoing, the motion court, despite entertaining the portion of
the defendant-appellant’s motion seeking reargument of the decision and order dated
October 7, 2013, was correct in adhering to its prior decision which denied the cross
motion fro summary judgment of defendants-appellants MTA and Isael Reyes.
17
POINT III
The motion court properly denied defendants-appellants
motion to renew as there was no new or additional evidence
unknown to the MTA and Isael Reyes when their original
cross motion for summary judgment was made.
A motion for leave to renew is intended to bring to the court’s attention new
facts or additional evidence which, although in existence at the time the original
motion was made, were unknown to the movant and were therefore not brought to the
court’s attention. Pahl Equipment Corp.supra.; Tishman Construction Corp. of New
York v. City of New York 280 AD2d 374 (1st Dept. 2005); Hon v. Allstate Insurance
Company 2011 NY Misc LEXIS 5448 (Sup. Ct NY Cty 2011). It is well settled that
the party seeking renewal must provide a reasonable excuse for failing to provide the
evidence in connection with the original motion. Taub v. Art Students League of New
York 63 AD3d 630 (1st Dept. 2009) Moreover, the First Department has recently
noted that “renewal is granted sparingly…it is not a second chance freely given to
parties who have not exercised due diligence in their factual presentation.” Henry v.
Peguero 72 AD3d 600 (1st Dept. 2010). In Hon supra., similar to the case at bar, the
defendant moved for renewal attaching a supplemental affidavit in support of such
motion, however the court found the record showed that the defendant Allstate had
ample opportunity to produce this affidavit in the original motion but failed to do so.
Therefore, the court determined that the defendant had not satisfied its burden of
18
demonstrating a reasonable excuse for failing to provide the affidavit, and the
information contained therein, on the original motion or that it used due diligence to
obtain the affidavit and renewal should be denied. See also Taub supra. Likewise, in
Henry supra. plaintiff offered a supplemental medical report from a treating physician
in support of its motion to renew. Therein, the First Department determined “it was
apparent that the supplemental medical statement was submitted in an attempt to
remedy a weakness in plaintiff’s opposition to defendant’s original motion…the
Supreme Court’s grant of renewal in this matter contravenes the court’s policy of
confining motion practice to the limits imposed by the CPLR. Neither of the statutory
requirements for renewal were satisfied by plaintiff. The physician’s addendum was
not the result of any additional examination or testing, rather the physician’s
conclusion was based on the medical information previously available to him and
could have been included in his original affidavit. While, in appropriate
circumstances, renewal may be predicated on previously known facts, it is settled that
the movant must offer a reasonable excuse for failure to submit additional evidence on
the original motion.” See also Segall v. Heyer 161 AD2d 471 (1990); Lee v. Ogden
Allied Maintenance Corp. 226 AD2d 226 (1st Dept. 1996); Jones v. 170 East 92nd
Street Owners Corp. 69 AD3d 483 (1st Dept. 2010); Macias v. New York City Transit
Authority 240 AD2d 196 (1st Dept. 1997); Cannistra v. Gibbons 224 AD2d 570 (2nd
Dept.1995)
19
The courts have made it clear that even “strategical litigation decisions” will not
suffice as a reasonable excuse for failing to provide evidence within a party’s
possession on the original motion. Esposito v. The Port Authority of New York and
New Jersey 2011 NY Misc. LEXIS 3279 (Sup Ct NY Cty 2011) In Esposito supra. ,
the court found that the excuse of plaintiff’s counsel that it was not “unreasonable
decision” to not have previously submitted the affidavit (submitted in the motion to
renew) on the original motion, to be nonpersuasive and plaintiff’s counsel failed to
demonstrate that the information in his client’s affidavit was unavailable or unknown
when he opposed the original motion or that he exercised due diligence in obtaining
the information and the motion to renew should be denied.
Herein, judged by the aforementioned standards, it is clear that defendants
MTA/Reyes failed to meet their burden of proof in demonstrating new or additional
facts warranting renewal. Within the motion to renew made by defendants-appellants
MTA and Isael Reyes, Mr. Reyes provides a supplemental affidavit with additional
information concerning the subject accident. Foremost, this second affidavit provided
by defendant-appellant bus operator Isael Reyes does not contain any new or
additional facts that were not within Mr. Reyes knowledge when the original motion
was made and could not have been presented to the court on such motion. (R.335-339)
Second, bus operator Isael Reyes states in this supplemental affidavit (R.335-339) that
he did not mention this information in his earlier affidavit in opposition to the original
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motion because “it did not occur to me that anyone would question my actions and
suggest that while driving a bus with passengers, I could have jumped a guard barrier
and moved to the right, in order to avoid a collision when faced with this situation… I
did not think it was necessary to describe what was to the right of the bus since it was
not possible or even logical to move right.” Aside from the fact that information in
the supplemental affidavit is patently incorrect as the MTA’s own accident diagram
(R.114) shows a lane to the right of the bus that the operator could have moved into
without jumping a guard rail, this supplemental affidavit provided with the motion to
renew amounts to nothing more than a “strategical litigation strategy” which will not
suffice as a reasonable excuse for failure to present this evidence which was within his
knowledge when the initial motion was made.
Moreover, the photos (R.337-339) were not provided in the defendant
MTA/Reyes original opposition and were photos, that if taken before the original
motion was made, were available to these defendants and not provided. If they
weren’t taken prior to the original motion, these are scene photographs which could
have been taken prior to making the original motion and were images available to
these defendants as no one would have prevented them from photographing this public
area.
In light of the foregoing, defendant MTA/Reyes motion to renew and reargue is
essentially a motion to reargue since they did not submit any new evidence on the
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motion. The portion of the motion which sought renewal of argument of the October
7, 2013 decision was properly denied by the motion court.
CONCLUSION
The Supreme Court, in denying the motion for summary judgment of
defendant-appellant MTA Bus Company and Isael Reyes, correctly determined that
triable issues of fact exist as to whether
In light of the foregoing, the plaintiff-respondents respectfully request that this
Court affirm the Supreme Court’s order that originally denied MTA and Isael Reyes
motion for summary judgment, denied.
Dated: Bronx, New York
July 28, 2014
Respectfully submitted,
Laurence M. Savedoff, Esq
LAURENCE M. SAVEDOFF, PLLC
Attorney for Plaintiff-Respondent
SWITZERLAND GREEN
3234 White Plains Road
Bronx, New York 10467
(718) 515-0020
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CERTIFICATE OF COMPLIANCE
Pursuant to 22 NYCRR Section § 600.10 (v)
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