### 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 governmentsources, 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 NEWYORK NEWYORK COUNTY PRESENT: HON. RICHARD TSAI PART Justice

---------------------------------------------------------------------------------X

JOEL MYRIE, Plaintiff,

- V
- NEWYORK CITYTRANSITAUTHORITY, MTA BUS COMPANY, MABSTOA, METROPOLITAN TRANSPORTATION AUTHORITY and FRANCISCO ALMANZAR, Defendants.

---------------------------------------------------------------------------------X INDEX NO. 152133/2023 MOTION DATE 03/13/2024 MOTION SEQ. NO. 001

DECISION + ORDER ON MOTION

Thefollowing 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 summaryjudgment as to liability is GRANTED TO THE EXTENT that partial summary judgment is granted on the issue of liability only in plaintiff'sfavor as against defendants NewYork CityTransitAuthority and Francisco Almanzar; and it is further ORDERED that the fourth affirmative defense ofthe 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 appearfor the previously scheduled, in-person, status conference in courtroom 280 at 80 Centre Street, NewYork, NY on November 14, 2024 at 10:30 AM. In this action arising out ofa motorvehicle collision between a bus and a bicyclist, plaintiff now moves for partial summaryjudgment in his favor as to liability. Defendants oppose the motion. "On a motion for summaryjudgment, the moving party must make a prima facie showing ofentitlement tojudgment as a matter oflaw, tendering sufficient evidence to demonstrate the absence ofany material issues of fact. Ifthe moving party produces the required evidence, the burden shifts to the nonmoving partyto establish the existence of material issues offact which require a trial ofthe action" (Xiang Fu He v Troon Mgt., Inc., 34 NY3d 167, 175 [2019] [internal citations and quotation marks omitted]).
152133/2023 MYRIE, JOEL vs. NEWYORK CITYTRANSIT AUTHORITY ET AL Motion No. 001

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### [* 1]NYSCEF DOC. NO. 38 INDEX NO. 152133/2023 RECEIVED NYSCEF: 08/20/2024

In support of his motion, plaintiffavers 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 Streetwith a green traffic light in his favor (Myrie aff

### ,i,i 4-5 [NYSCEF Doc. No. 21]). According to plaintiff, "As I proceeded lawfullythrough 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, plaintifftestified 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 ofmotion, 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 ofthe accident (id.at 14, lines 13-14). Plaintifftestified that he was coming from home on his wayto 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). Plaintiffalso submits video footage of the collision (see Plaintiff's ExhibitA in support of motion [NYSCEF Doc. No. 23]). 1 Plaintiff's counsel argues that plaintiff had the right-of-way and that the bus operatorfailed 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 NewYork CityTransit Authority admitted that it owned the bus bearing license plate number BF4139, and that it was operated by defendant Francisco Almanzarwithin 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 ofa 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 ofthis statute constitutes negligence per se" (Lindo vKatz, 205 AD3d 1016, 1017 [2d Dept 2022]; see also Maysonet vEan 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 vLee, 219 AD3d 601, 602 [2d Dept 2023] [citation omitted]). Here, the video footage from the forward view ofthe bus shows a green light in the bus'sfavor, 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 ofan 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 contactwith the bus about two to three seconds thereafter.

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

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### [* 2]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 plaintiffwas 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, pursuantto Vehicle and Traffic Law§ 1141. Because the contact occurred within 2-3 seconds afterthe bus began resuming its turn, the courtfinds 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 ofVehicle and Traffic Law§ 1163 (a). Plaintifftherefore metthe prima facie burden ofdemonstrating the negligence of defendants NYCTA and Almanzar (compare Bell vAngah, 146 AD3d 734 [1st Dept 2017] [defendant taxi driver attempted to make a left turn and, in the process, crossed overthe bicycle lanejust moments before plaintiffarrived at the same spot]; Burns v Mastroianni, 173 AD2d 754, 755 [2d Dept 1991] [Driverwho did not see plaintiff's bicycle approaching from opposite direction was negligent. Even ifdriver saw but disregarded the plaintiffon his bicycle, he was negligent in trying to cross in front ofthe plaintiffwhen it was hazardous to do so]). In opposition, Almanzarstates, "Immediately priorto the subject incident occurring, I had a green light to perform a legal left-hand turn, in accordancewith the Bus' usual route. At or about the same time, a male pedestrian on an electric bicycle was traveling straight at a high rate ofspeed on Riverside Drive and 145th Street in NewYork, NewYork, 10031, and contacted right windshield portion ofthe Bus" (Defendants' Exhibit C in opposition, AlmanzarAff

# ,m 9-10 [NYSCEF Doc. No. 34]). Defendants therefore argue that summaryjudgment should be denied on the grounds that (1) there are issues offact as to whether plaintiff complied with NewYork City e-bike rules (2) there is a disputed issue offact as to whether plaintiff had struck the bus as opposed to the bus striking plaintiff; and (3) summaryjudgment is premature. The court agrees with plaintiffthat summaryjudgment is not premature, "since defendants have personal knowledge ofthe facts" and are thus responsible for "laying bare their proof and presenting evidence sufficient to raise a triable issue offact" (Thompson vPizzaro, 155 AD3d 423, 423 [1st Dept 2017]; Guerrero vMilla, 135 AD3d 635, 636 [1st Dept 2016] ["The mere hope that evidence sufficient to defeat a motion for summaryjudgment may be uncovered during the discovery process is insufficient to denysuch a motion"]).

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### [* 3]NYSCEF DOC. NO. 38 INDEX NO. 152133/2023 RECEIVED NYSCEF: 08/20/2024

Whetherthe bus struck plaintifforwhether plaintiffstruckthe bus is not a material issue warranting denial ofsummaryjudgment. It is irrelevantwhetherthe bus struck plaintiff head on, or instead placed itself into the path ofplaintiff's oncoming ebike. In both scenarios, the bus driverfailed to properlyyield the right-of-way to oncoming traffic. The video footage established that, afteryielding 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 safelywithout avoiding contact with plaintiff's e-bike. Defendants' remaining arguments are unavailing. Contrary to defendants' argument, "'[a] violation ofa standard ofcare imposed by the Vehicle and Traffic Law constitutes negligence per se"' (Ali vAlam, 223 AD3d 642, 644 [2d Dept 2024] [citation omitted]; Chavis vZorrilla, 222 AD3d 581, 581 [1st Dept 2023]). 2 Allegations that plaintiffwas not in compliance with NewYork City e-bike rules, orthat plaintiffwas traveling at a high rate ofspeed, raise issues of plaintiff's comparative fault. However, "plaintiff is not required to demonstrate the absence of his own comparative fault in orderto obtain partial summaryjudgment on defendants' liability" (Webb vNew York City Tr. Auth., 213 AD3d 606, 607 [1st Dept 2023]) Therefore, plaintiff's motion for summaryjudgment in his favor as to liability is granted as to defendants NYCTA and Almanzar. To be clear, the determination offault ofdefendants NYCTA and Almanzar does not include the issue ofwhether plaintiff suffered a serious injury within the meaning of Insurance Law§ 5102 (d), "which is a threshold matterseparate from the issue offault" (Reid vBrown, 308 AD2d 331, 332 [1st Dept 2003]). Summaryjudgment dismissing the fourth affirmative defense ofthe emergency doctrine is also granted. Although defendants' counsel contends that "'the emergency doctrine' may operate as complete defense" (affirmation ofdefendants' counsel in opposition 

### ,i 36 [NYSCEF Doc. No. 31]), the bus operator neitherstates in his affidavit that he was faced with an emergency norsets 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 vSanzone, 96 NY2d 172, 174 [2001]). Summaryjudgment against defendants MTA Bus Company, MABSTOA, Metropolitan Transportation Authority is denied, as plaintiff has not established their liability on this motion. Summaryjudgment 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 forvehicles, and to avoid placing himselfor herself into a dangerous position" (Felix, 178 AD3d at 563 [1st Dept 2019]).

2 Defendants' contention that plaintiff's e-bike is not a motorvehicle is irrelevant. "Pursuantto Vehicle and Traffic Law§ 1231, a person riding a bicycle on a roadway has the same rights and responsibilities as adriverof a motorvehicle" (Felix vPolakoff, 178AD3d 561, 563 [1st Dept 2019]).

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"A driverwho has the right-of-way has a dutyto exercise reasonable care to avoid a collision with anothervehicle already in the intersection" (Todd v Godek, 71 AD3d 872, 872 [2d Dept20101). On the record presented, the court cannot determine, as a matteroflaw, that plaintiff had exercised reasonable care to avoid the collision. There are unresolved questions offact as to when plaintiff had first seen the bus in the intersection and how farthe plaintiffwas awayfrom the bus atthat 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 atthe next status conference on November 14, 2024, and to preserve the video footage intact pending the outcome ofany appeal ofthis decision and order, or ifno appeal is taken, until after the time to appeal from this decision and order has expired.

8/20/2024

DATE CHECKONE:

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 FIDUCIARYAPPOINTMENT

### □ OTHER**□** REFERENCE

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