To be Argued by:
ARJAY G. YAO
Supreme Court of the State of New York
Appellate Division – First Department
- against -
METROPOLITAN TRANSPORTATION AUTHORITY BUS COMPANY,
and ISAEL REYES,
TYESE LAWS and SAMANTHA SANTIAGO,
REPLY BRIEF FOR DEFENDANTS-APPELLANTS
MTA BUS COMPANY AND ISAEL REYES
MORRIS DUFFY ALONSO & FALEY
Attorneys for Defendants-Appellants
MTA Bus Company and Isael Reyes
2 Rector Street - 22nd Floor
New York, New York 10006
New York County Clerk’s Index No.: 400725/2012
8580 Printed on Recycled Paper
TABLE OF CONTENTS
MTA BUS IS ENTITLED TO SUMMARY JUDGMENT....................2
DEFENDANTS LAWS AND SANTIAGO ARE NOT
ENTITLED TO SUMMARY JUDGMENT...............................9
TABLE OF AUTHORITIES
Case: Page No.:
Ari v. Cohen,
107 A.D.3d 516, 968 N.Y.S.2d 31 (1st Dept. 2013)...........3
Aronov v. Regency Gardens Apartments Corp.,
34 A.D.3d 404, 823 N.Y.S.2d 542 (2d Dept. 2006)............2
Bernstein v. 1995 Associates,
211 A.D.2d 560, 621 N.Y.S.2d 78 (1st Dept. 1995)...........2
Cruz v. MTLR Corp.,
111 A.D.3d 568, 975 N.Y.S.2d 657 (1st Dept. 2013)..........2
DeHavilland v. Transit Authority,
9 Misc.3d 1127A, 862 N.Y.S.2d 807 (N.Y.Sup. 2005)..........6
Deregibus v. Saracco,
225 A.D. 354, 233 N.Y.S. 99 (1st Dept. 1929)...............4
Flores v. City of New York,
66 A.D.3d 599, 88 N.Y.S.2d 27 (1st Dept. 2008).............5
Frankola v. Mainco CO. Inc.,
277 A.D.2d 178, 717 N.Y.S.2d 129 (1st Dept. 2000)..........3
Gonzalez v. City of New York,
295 A.D.2d 122, 742 N.Y.S.2d 301 (1st Dept. 2002)..........3
Grullon v. City of New York,
297 A.D.2d 261, 747 N.Y.S.2d 426 (1st Dept. 2002)..........5
Hasslet v. Allen,
178 A.D.2d 266, 577 N.Y.S.2d 383 (1st Dept. 1991)..........3
Hull v. Littauer,
162 N.Y 569, 572, 57 N.E. 103 (1900).......................4
In re Brooke Louise Lutheran Community Services, Inc.,
158 A.D.2d 425, 552 N.Y.S.2d 3 (1st Dept. 1990)............9
Liu v. Cheng,
82 A.D.3d 405, 918 N.Y.S.2d 38 (1st Dept. 2011)............6
Markowitz v. Lewis,
40 A.D.3d 371, 835 N.Y.S.2d 563 (1st Dept. 2007)...........7
Moore v. True North Communications,
1 A.D.3d 175, 766 N.Y.S.2d 564 (1st Dept. 2003)............5
Pena v. Slater,
100 A.D.3d 488, 954 N.Y.S.2d 50 (1st Dept. 2012)...........4
Rabassa v. Caldas,
306 A.D.2d 137, 760 N.Y.S.2d 318 (1st Dept. 2003)..........6
Rhodes v. United Parcel Service,
33 A.D.3d 455, 822 N.Y.S.2d 521 (1st Dept. 2006)...........7
Shared Communications Services of ESR Inc.
v. Goldman, Sachs & Co.,
38 A.D.3d 325, 832 N.Y.S.2d 32 (1st Dept. 2007)............3
This Reply Brief is submitted on behalf of Defendants-
Appellants METROPOLITAN TRANSPORTATION AUTHORITY BUS COMPANY and
ISAEL REYES (hereinafter collectively referred to as “MTA BUS”).
MTA BUS appeals from the Order of the Supreme Court, New York
County, dated October 7, 2013, which granted summary judgment to
Defendants TYESE LAWS and SAMANTHA SANTIAGO and denied MTA BUS’
cross-motion for summary judgment. MTA BUS also appeals from a
subsequent Order of the same court, dated March 4, 2014, which
denied its motion to renew, granted reargument, and upon
reargument, adhered to its prior determination.
MTA BUS IS ENTITLED TO SUMMARY JUDGMENT
Contrary to Respondents’ contentions, MTA BUS is entitled
to summary judgment dismissing Plaintiff GREEN’S Complaint
against it because the evidence demonstrates that MR. REYES
acted reasonably under the emergency circumstances created by
the red van which suddenly and unexpectedly jumped the barrier
and entered into the bus’ lane of travel.
In the first instance, Plaintiff LAWS’ Respondent’s Brief
should not be considered by the Court because the Record
demonstrates that his opposition to MTA BUS’ motion for summary
judgment was not considered by the motion court. Specifically,
in his opposition to MTA BUS’ motion to reargue and renew,
Plaintiff LAWS admitted that on the return date of MTA BUS’
initial motion, “the attorney who appeared for my office was
late, the papers were not excepted [sic] by this Court” (363).
Accordingly, Plaintiff LAWS is not an aggrieved party and does
not have standing to oppose MTA BUS’ arguments on appeal. See,
CPLR § 5511; see also, Bernstein v. 1995 Associates, 211 A.D.2d
560, 621 N.Y.S.2d 78 (1st Dept. 1995); Aronov v. Regency Gardens
Apartments Corp., 34 A.D.3d 404, 823 N.Y.S.2d 542 (2d Dept.
Second, Respondents’ assertions that MTA BUS did not uphold
its burden of proof because it did not present any physical
evidence or mention any damage to the barrier are raised for the
first time on appeal and are not preserved for appellate review.
Accordingly, they should be disregarded by the Court. See, Ari
v. Cohen, 107 A.D.3d 516, 968 N.Y.S.2d 31 (1st Dept. 2013);
Shared Communications Services of ESR Inc. v. Goldman, Sachs &
Co., 38 A.D.3d 325, 832 N.Y.S.2d 32 (1st Dept. 2007); Frankola
v. Mainco CO. Inc., 277 A.D.2d 178, 717 N.Y.S.2d 129 (1st Dept.
2000); Hasslet v. Allen, 178 A.D.2d 266, 577 N.Y.S.2d 383 (1st
In support of their contention that the existence of the
red van is a credibility issue to be resolved by the trier of
fact, Respondents misconstrue the law. While it is true that
issues of credibility are to be resolved by a jury, it was
clearly enunciated by the Court of Appeals that “[w]here…the
evidence of a party to the action is not contradicted by direct
evidence, nor by any legitimate inferences from the evidence,
and it is not opposed to the probabilities, nor, in its nature,
surprising or suspicious, there is no reason for denying to it
conclusiveness.” Hull v. Littauer, 162 N.Y 569, 572, 57 N.E.
103 (1900); see, Deregibus v. Saracco, 225 A.D. 354, 233 N.Y.S.
99 (1st Dept. 1929). Here, Respondents do not offer any reason
to doubt MR. REYES’ account of the events, other than summarily
stating that it is untrue simply because it benefits MR. REYES.
In fact, Respondents acknowledge that MR. REYES mentioned the
red van immediately after the accident, which is memorialized in
the MTA investigation report (108). Accordingly, MR. REYES’
subsequent statements regarding the red van in his affidavits
were not “surprising or suspicious” and there is no reason to
deny their conclusiveness. See, Hull, supra.
By arguing that it cannot be determined as a matter of law
that MR. REYES acted reasonably by swerving into the left lane,
Respondents ignore the caselaw which explicitly states that
“speculation concerning the possible accident-avoidance measures
of a defendant faced with an emergency.” Cruz v. MTLR Corp.,
111 A.D.3d 568, 975 N.Y.S.2d 657 (1st Dept. 2013); see, Pena v.
Slater, 100 A.D.3d 488, 954 N.Y.S.2d 50 (1st Dept. 2012);
Gonzalez v. City of New York, 295 A.D.2d 122, 742 N.Y.S.2d 301
(1st Dept. 2002). Thus, MR. REYES’ statement that in the short
time he had to react he found it reasonable to swerve into
another lane of travel and because it is objectively reasonable
to swerve into another lane of travel as opposed to jump over a
guard barrier, the evidence is sufficient to establish the
applicability of the emergency doctrine (171). Respondents’
speculation, in turn, that MR. REYES could have done something
other than what he did is of no moment herein.
Moreover, since MR. REYES set forth all of the necessary
elements regarding the existence of the emergency any his
actions under the circumstances in his affidavit, mere hopes
that discovery would lead to relevant evidence which would
preclude summary judgment are insufficient to deny the motion.
See, Flores v. City of New York, 66 A.D.3d 599, 88 N.Y.S.2d 27
(1st Dept. 2008); Grullon v. City of New York, 297 A.D.2d 261,
747 N.Y.S.2d 426 (1st Dept. 2002); Moore v. True North
Communications, 1 A.D.3d 175, 766 N.Y.S.2d 564 (1st Dept. 2003).
Significantly, also, the information that Respondents claim
to be necessary to oppose summary judgment has already been
provided by MR. REYES in his affidavit and in any event, is not
in his sole knowledge. Namely, MR. REYES affirmed that as he
was proceeding in the right lane of Bruckner Boulevard at 15-20
miles per hour, a red van suddenly and unexpectedly jumped the
guard barrier separating the expressway from a service road on
the bus’ right and cut in front of the bus (171). In the little
time that MR. REYES had to react, he immediately moved the bus
to the left lane in order to avoid the red van (171). LAWS’
affidavit, in turn, demonstrates that LAWS is in fact in
possession of the pertinent facts regarding the occurrence and
as his counsel claims, LAWS’ memory was later “jarred” as to
additional facts. See, Plaintiff LAWS’ Respondent’s Brief at
p.22. Accordingly, Respondents cannot argue that MTA BUS is
solely in possession of the information needed to oppose summary
Rabassa v. Caldas, 306 A.D.2d 137, 760 N.Y.S.2d 318 (1st
Dept. 2003), cited by Plaintiff GREEN lends no supports to
Respondents’ argument insomuch as it does not provide any
specific facts upon which summary judgment was denied.
Liu v. Cheng, 82 A.D.3d 405, 918 N.Y.S.2d 38 (1st Dept.
2011) is distinguishable from the case at bar because unlike the
defendant in Liu, supra, MR. REYES did proffer evidence of the
reasonable action that he took to avoid collision with a red
van; i.e. he switched lanes.
DeHavilland v. Transit Authority, 9 Misc.3d 1127A, 862
N.Y.S.2d 807 (N.Y.Sup. 2005), a Supreme Court, New York County
case also cited by Plaintiff GREEN is not controlling on this
Court. In any event, the bus operator in DeHavilland, supra,
admitted that cars often enter the bus lane. Thus, unlike MR.
REYES who did not anticipate a van jumping a guard barrier, the
operator in DeHavilland could not argue that he did not foresee
that another driver may enter into the bus lane.
Plaintiff GREEN’S assertion that summary judgment is
frequently denied by this Court where conflicting versions of
the events reveal dispute as to material issues of fact and
supporting caselaw should be disregarded since the facts
regarding MTA BUS’ speed, the red van, and MR. REYES’ reasonable
response contained in MR. REYES’ affidavit are not disputed by
any of Respondents.
Indeed, unlike Rhodes v. United Parcel Service, 33 A.D.3d
455, 822 N.Y.S.2d 521 (1st Dept. 2006), there is no dispute in
the matter at bar regarding MR. REYES’ speed and there is no
question as to whether MR. REYES was operating at a safe
distance from the red van which came from the service road
separated from the bus’ lane of travel by a guard barrier.
Likewise, Markowitz v. Lewis, 40 A.D.3d 371, 835 N.Y.S.2d
563 (1st Dept. 2007) is inapposite since it involves an operator
stopping in a proper lane of travel in front of the defendant as
opposed to a van unexpectedly jumping into the road in front of
MR. REYES’ bus.
In sum, despite the fact that under certain circumstances
the existence of the emergency and the reasonableness of the
operator’s actions cannot be established as a matter of law, it
is not so under the facts of this case, where the uncontroverted
evidence demonstrates both, an emergency situation and that MR
REYES’ actions were reasonable.
While it remains MTS BUS’ contention that MR. REYES’
original affidavit sufficiently upheld MTA BUS’ burden of proof,
should this Court find it to be insufficient, it is respectfully
submitted that MTA BUS’ motion to renew should have been granted
in the interest of justice since MR. REYES’ supplemental
affidavit changes the outcome of the initial motion by
clarifying the issues that the motion court misconstrued,
finding a question of fact.
Specifically, in his supplemental affidavit MR. REYES
reiterated that there was no merging lane to the right of MTA
BUS and stated the obvious, that it was not reasonable for a bus
full of passengers to jump the guard rail (335-336).
DEFENDANTS LAWS AND SANTIAGO ARE NOT
ENTITLED TO SUMMARY JUDGMENT
Defendant LAWS misinterprets the purpose of CPLR § 4518(a)
by arguing in a conclusory manner that the MTA investigation
report is admissible as a business record. While it is true
that § 4518(a) serves as a vehicle for business record
admissibility, it does not obviate the need to lay the proper
foundation for a document to be admitted as such; i.e. the party
intending to use the record has to burden to show that it was
made in the regular course of business and that it was the
regular course of such business to make it. This foundation has
to be established through sworn testimony, and not counsel’s
speculation. Cf., In re Brooke Louise Lutheran Community
Services, Inc., 158 A.D.2d 425, 552 N.Y.S.2d 3 (1st Dept. 1990).
In this vein, only after the document itself is admitted as a
business record does the analysis turn to admissibility of its
Since LAWS did not lay the proper foundation to admit the
MTA investigation report as a business record, his attempt to
shift the burden to MTA BUS to deny that the document is a
business record is improper.
LAWS’ contention that he is entitled to summary judgment is
hinged entirely on the claim that LAWS remained in his lane of
travel. This, however, does not establish that LAWS fulfilled
his obligation as the operator of a vehicle to see what he
should have seen under the circumstances by the proper use of
his senses and that he could not have taken any evasive action
to avoid the accident. Accordingly, triable questions of fact
exist and LAWS’ defense counsel’s conclusory assertions that
LAWS was not negligent are insufficient to warrant summary
judgment. See, Defendant LAWS’ Respondent Brief at p. 16.
While arguing that discovery will not reveal anything to
implicate LAWS, LAWS’ counsel contends that LAWS’ affidavit does
not contradict his 50-H testimony, but simply provides
additional details about the occurrence that were either later
recalled or learned by LAWS. See, Plaintiff LAWS’ Respondent’s
Brief at p.22. This very argument renders summary judgment to
LAWS premature. Indeed, MTA BUS should be entitled to depose
LAWS on these newly recalled facts and find out whether he
recalled anything else later. It is fundamentally prejudicial
to MTA BUS to permit LAWS to mention additional facts for the
first time in an affidavit submitted in support of LAWS’ motion
for summary judgment without providing MTA BUS with an
opportunity to explore these facts at a deposition. That is
particularly true because the newly recalled fact had to do with
the speed at which LAWS was operating his vehicle at the time of
the accident (115).
Accordingly, Defendants LAWS and SANTIAGO are not entitled
to summary judgment.
For all of reasons stated above, the Orders appealed from
should be reversed.
Dated: August 14, 2014
MORRIS DUFFY ALONSO & FALEY
Attorneys for Defendants-Appellants
METROPOLITAN TRANSPORTATION AUTHORITY
BUS COMPANY and ISAEL REYES
Two Rector Street, 22nd Floor
New York, New York 10006
On the Brief:
IRYNA S. KRAUCHANKA
ANDREA M. ALONSO
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