Myrie v New York City Tr. Auth.

2024 NY Slip Op 32944(U)

August 20, 2024

Supreme Court, New York County

Docket Number: Index No. 152133/2023

Judge: Richard Tsai

Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York

State and local government sources, including the New

York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official

publication.
NYSCEF DOC. NO. 38 

INDEX NO. 152133/2023 

RECEIVED NYSCEF: 08/20/2024 

SUPREME COURT OF THE STATE OF NEW YORK 

NEW YORK COUNTY 

PRESENT: HON. RICHARD TSAI PART 

Justice 

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JOEL MYRIE, 

Plaintiff, 

- V -

NEW YORK CITY TRANSIT AUTHORITY, MT A BUS 

COMPANY, MABSTOA, METROPOLITAN 

TRANSPORTATION AUTHORITY and FRANCISCO 

ALMANZAR, 

Defendants. 

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INDEX NO. 152133/2023 

MOTION DATE 03/13/2024 

MOTION SEQ. NO. 001 

DECISION + ORDER ON 

MOTION 

The following e-filed documents, listed by NYSCEF document numbers (Motion 001) 19-28, 31-36 

were read on this motion to/for JUDGMENT - SUMMARY 

21 

Upon the foregoing documents, it is ORDERED that plaintiff's motion for partial 

summary judgment as to liability is GRANTED TO THE EXTENT that partial summary 

judgment is granted on the issue of liability only in plaintiff's favor as against defendants 

New York City Transit Authority and Francisco Almanzar; and it is further 

ORDERED that the fourth affirmative defense of the emergency doctrine is 

stricken; and it is further 

ORDERED that plaintiff's motion is otherwise denied; and it is further 

ORDERED that the parties are directed to appear for the previously scheduled, 

in-person, status conference in courtroom 280 at 80 Centre Street, New York, NY on 

November 14, 2024 at 10:30 AM. 

In this action arising out of a motor vehicle collision between a bus and a 

bicyclist, plaintiff now moves for partial summary judgment in his favor as to liability. 

Defendants oppose the motion. 

"On a motion for summary judgment, the moving party must make a prima 

facie showing of entitlement to judgment as a matter of law, tendering 

sufficient evidence to demonstrate the absence of any material issues of 

fact. If the moving party produces the required evidence, the burden shifts 

to the nonmoving party to establish the existence of material issues of fact 

which require a trial of the action" (Xiang Fu He v Troon Mgt., Inc., 34 

NY3d 167, 175 [2019] [internal citations and quotation marks omitted]). 

152133/2023 MYRIE, JOEL vs. NEW YORK CITY TRANSIT AUTHORITY ET AL 

Motion No. 001 

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NYSCEF DOC. NO. 38 

INDEX NO. 152133/2023 

RECEIVED NYSCEF: 08/20/2024 

In support of his motion, plaintiff avers that, on September 7, 2022 at 

approximately 4:10 p.m., he was traveling southbound on a bicycle on Riverside Drive 

in the right lane, approaching West 145th Street with a green traffic light in his favor 

(Myrie aff ,i,i 4-5 [NYSCEF Doc. No. 21]). According to plaintiff, "As I proceeded 

lawfully through the intersection, a bus made a sudden left turn and struck me, violently 

knocking me off my bicycle" (id. ,i 6). 

At his statutory hearing, plaintiff testified that he was riding a "pedal assist electric 

bike," which has a maximum speed of 19 miles per hour (Plaintiff's Exhibit C in support 

of motion, at 13, lines 23 through 14, line 10 [NYSCEF Doc. No. 25]). According to 

plaintiff, he was traveling between 14 to 15 miles per hour at the time of the accident 

(id.at 14, lines 13-14). Plaintiff testified that he was coming from home on his way to 

work at Kabooz's Bar and Grill at Penn Station, where he works as a restaurant 

manager (id. at 17, lines 9-13; at 10, lines 6-19). Plaintiff also submits video footage of 

the collision (see Plaintiff's Exhibit A in support of motion [NYSCEF Doc. No. 23]). 1 

Plaintiff's counsel argues that plaintiff had the right-of-way and that the bus 

operator failed to yield the right-of-way, which constitutes negligence per se. Plaintiff 

contends that Vehicle and Traffic Law§ 1163 (a) was violated as well. 

In its answer, defendant New York City Transit Authority admitted that it owned 

the bus bearing license plate number BF4139, and that it was operated by defendant 

Francisco Almanzar within the scope of his employment (Plaintiff's Exhibit E, answer ,i 4 

[NYSCEF Doc. No. 27]). 

"Pursuant to Vehicle and Traffic Law§ 1141, the operator of a vehicle 

intending to turn left within an intersection must yield the right-of-way to 

any oncoming vehicle that is within the intersection or so close to it as to 

constitute an immediate hazard. A violation of this statute constitutes 

negligence per se" (Lindo v Katz, 205 AD3d 1016, 1017 [2d Dept 2022]; 

see also Maysonet v Ean Holdings, LLC, 137 AD3d 517, 517 [1st Dept 

2016]). 

Additionally, "Vehicle and Traffic Law§ 1163(a) provides that '[n]o person shall turn a 

vehicle at an intersection ... until such movement can be made with reasonable safety"' 

(Pham v Lee, 219 AD3d 601, 602 [2d Dept 2023] [citation omitted]). 

Here, the video footage from the forward view of the bus shows a green light in 

the bus's favor, but the light is not a protected left turn signal. At 00:05, the bus begins 

to turn left, but at 00:06, the bus stops due to the approach of an oncoming vehicle. At 

00:09, the bus then resumes the left turn, and a bicycle is seen in the distance 

approaching the bus, about one car length before the cross walk. As the bus is turning, 

plaintiff makes contact with the bus about two to three seconds thereafter. 

1 Plaintiff's counsel provided the video footage on a USB flash drive. 

152133/2023 MYRIE, JOEL vs. NEW YORK CITY TRANSIT AUTHORITY ET AL 

Motion No. 001 

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NYSCEF DOC. NO. 38 

INDEX NO. 152133/2023 

RECEIVED NYSCEF: 08/20/2024 

The video footage at 00:09 clearly establishes that the bus was turning before 

plaintiff was within the intersection. Thus, the question presented is whether plaintiff's 

bicycle was so close to the intersection so as to present an immediate hazard, which 

would require the bus to yield, pursuant to Vehicle and Traffic Law§ 1141. 

Because the contact occurred within 2-3 seconds after the bus began resuming 

its turn, the court finds that, as a matter of law, plaintiff's bicycle was so close to the 

intersection that it presented an immediate hazard, and the bus was therefore required 

to yield. The fact that plaintiff made contact with the bus before it completed its turn 

also established, prima facie, that it was not reasonably safe to make a left turn, in 

violation of Vehicle and Traffic Law§ 1163 (a). 

Plaintiff therefore met the prima facie burden of demonstrating the negligence of 

defendants NYCTA and Almanzar (compare Bell v Angah, 146 AD3d 734 [1st Dept 

2017] [defendant taxi driver attempted to make a left turn and, in the process, crossed 

over the bicycle lane just moments before plaintiff arrived at the same spot]; Burns v 

Mastroianni, 173 AD2d 754, 755 [2d Dept 1991] [Driver who did not see plaintiff's 

bicycle approaching from opposite direction was negligent. Even if driver saw but 

disregarded the plaintiff on his bicycle, he was negligent in trying to cross in front of the 

plaintiff when it was hazardous to do so]). 

In opposition, Almanzar states, 

"Immediately prior to the subject incident occurring, I had a green light to 

perform a legal left-hand turn, in accordance with the Bus' usual route. 

At or about the same time, a male pedestrian on an electric bicycle was 

traveling straight at a high rate of speed on Riverside Drive and 145th 

Street in New York, New York, 10031, and contacted right windshield 

portion of the Bus" (Defendants' Exhibit C in opposition, Almanzar Aff ,m 

9-10 [NYSCEF Doc. No. 34]). 

Defendants therefore argue that summary judgment should be denied on the 

grounds that (1) there are issues of fact as to whether plaintiff complied with New York 

City e-bike rules (2) there is a disputed issue of fact as to whether plaintiff had struck 

the bus as opposed to the bus striking plaintiff; and (3) summary judgment is premature. 

The court agrees with plaintiff that summary judgment is not premature, "since 

defendants have personal knowledge of the facts" and are thus responsible for "laying 

bare their proof and presenting evidence sufficient to raise a triable issue of fact" 

(Thompson v Pizzaro, 155 AD3d 423, 423 [1st Dept 2017]; Guerrero v Milla, 135 AD3d 

635, 636 [1st Dept 2016] ["The mere hope that evidence sufficient to defeat a motion for 

summary judgment may be uncovered during the discovery process is insufficient to 

deny such a motion"]). 

152133/2023 MYRIE, JOEL vs. NEW YORK CITY TRANSIT AUTHORITY ET AL 

Motion No. 001 

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Page 3 of 5 

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NYSCEF DOC. NO. 38 

INDEX NO. 152133/2023 

RECEIVED NYSCEF: 08/20/2024 

Whether the bus struck plaintiff or whether plaintiff struck the bus is not a 

material issue warranting denial of summary judgment. It is irrelevant whether the bus 

struck plaintiff head on, or instead placed itself into the path of plaintiff's oncoming ebike. In both scenarios, the bus driver failed to properly yield the right-of-way to 

oncoming traffic. The video footage established that, after yielding to an oncoming car, 

bus resumed its left turn two to three seconds before plaintiff's e-bike made contact with 

the bus. Thus, the bus could not have completed the turn safely without avoiding 

contact with plaintiff's e-bike. 

Defendants' remaining arguments are unavailing. Contrary to defendants' 

argument, "'[a] violation of a standard of care imposed by the Vehicle and Traffic Law 

constitutes negligence per se"' (Ali v Alam, 223 AD3d 642, 644 [2d Dept 2024] [citation 

omitted]; Chavis v Zorrilla, 222 AD3d 581, 581 [1st Dept 2023]). 2 Allegations that 

plaintiff was not in compliance with New York City e-bike rules, or that plaintiff was 

traveling at a high rate of speed, raise issues of plaintiff's comparative fault. However, 

"plaintiff is not required to demonstrate the absence of his own comparative fault in 

order to obtain partial summary judgment on defendants' liability" (Webb v New York 

City Tr. Auth., 213 AD3d 606, 607 [1st Dept 2023]) 

Therefore, plaintiff's motion for summary judgment in his favor as to liability is 

granted as to defendants NYCTA and Almanzar. To be clear, the determination of fault 

of defendants NYCT A and Almanzar does not include the issue of whether plaintiff 

suffered a serious injury within the meaning of Insurance Law§ 5102 (d), "which is a 

threshold matter separate from the issue of fault" (Reid v Brown, 308 AD2d 331, 332 

[1st Dept 2003]). 

Summary judgment dismissing the fourth affirmative defense of the emergency 

doctrine is also granted. Although defendants' counsel contends that "'the emergency 

doctrine' may operate as complete defense" (affirmation of defendants' counsel in 

opposition ,i 36 [NYSCEF Doc. No. 31]), the bus operator neither states in his affidavit 

that he was faced with an emergency nor sets forth any circumstances from which it 

could be reasonably be inferred that he was faced with an emergency not of his own 

making (see Caristo v Sanzone, 96 NY2d 172, 174 [2001]). 

Summary judgment against defendants MTA Bus Company, MABSTOA, 

Metropolitan Transportation Authority is denied, as plaintiff has not established their 

liability on this motion. 

Summary judgment striking the first affirmative defense of plaintiff's culpable 

conduct is also denied. "[A] bicyclist is required to use reasonable care for his or her 

own safety, to keep a reasonably vigilant lookout for vehicles, and to avoid placing 

himself or herself into a dangerous position" (Felix, 178 AD3d at 563 [1st Dept 2019]). 

2 Defendants' contention that plaintiff's e-bike is not a motor vehicle is irrelevant. "Pursuant to 

Vehicle and Traffic Law§ 1231, a person riding a bicycle on a roadway has the same rights and 

responsibilities as a driver of a motor vehicle" (Felix v Polakoff, 178 AD3d 561, 563 [1st Dept 

2019]). 

152133/2023 MYRIE, JOEL vs. NEW YORK CITY TRANSIT AUTHORITY ET AL 

Motion No. 001 

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NYSCEF DOC. NO. 38 

INDEX NO. 152133/2023 

RECEIVED NYSCEF: 08/20/2024 

"A driver who has the right-of-way has a duty to exercise reasonable care to avoid a 

collision with another vehicle already in the intersection" (Todd v Godek, 71 AD3d 872, 

872 [2d Dept 20101). 

On the record presented, the court cannot determine, as a matter of law, that 

plaintiff had exercised reasonable care to avoid the collision. There are unresolved 

questions of fact as to when plaintiff had first seen the bus in the intersection and how 

far the plaintiff was away from the bus at that time. 

Lastly, plaintiff's counsel is reminded to retrieve the USB flash drive containing 

the video footage from IAS Part 21 , 80 Centre Street Room 280 at the next status 

conference on November 14, 2024, and to preserve the video footage intact pending 

the outcome of any appeal of this decision and order, or if no appeal is taken, until after 

the time to appeal from this decision and order has expired. 

8/20/2024 

DATE 

CHECK ONE: 

APPLICATION: 

CHECK IF APPROPRIATE: 

CASE DISPOSED 

GRANTED □ DENIED 

SETTLE ORDER 

INCLUDES TRANSFER/REASSIGN 

20240820112215RTS~BCEA0EF62A97AB0A8EE 

RICHARD TSAI, J.S.C. 

NON-FINAL DISPOSITION 

GRANTED IN PART 

SUBMIT ORDER 

FIDUCIARY APPOINTMENT 

□ OTHER 

□ REFERENCE 

152133/2023 MYRIE, JOEL vs. NEW YORK CITY TRANSIT AUTHORITY ET AL 

Motion No. 001 

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