Cruzado v Samadder

2024 NY Slip Op 32421(U)

July 11, 2024

Supreme Court, New York County

Docket Number: Index No. 153187/2021

Judge: Denise M. Dominguez

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

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This opinion is uncorrected and not selected for official

publication.
NYSCEF DOC. NO. 109 

INDEX NO. 153187/2021 

RECEIVED NYSCEF: 07/12/2024 

SUPREME COURT OF THE STATE OF NEW YORK 

NEW YORK COUNTY 

PRESENT: HON. DENISE M DOMINGUEZ 

Justice 

------¥~-------------------------------------------------------------------------X 

KEVEN CRUZADO 

Plaintiff 

- V -

UTTAM SAMADDER, METROPOLITAN TRANSPORTATION 

AUTIIORITY, NEW YORK CITY TRANSIT AUTHORITY, 

AMERICAN TRANSIT INSURANCE COMPANY, PHILLIP 

Ri\BINOWlTZ 

Defendant~ 

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

PART 35 

INDEX NO. 153187/2021 

MOTION SEQ. ~O. ___ 00_3 __ _ 

DECISION AND ORDER ON 

MOTION 

The following c-filcd documents, listed by NYSCEF document number (Motion 003) 60, 61, 62, 63, 64, 65, 66, 67, 

68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88. 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 

99, 100, 101, 102, 103, 104, 105, 106, 107, 108 

were read on this motion to/for AMEND CAPTION/PLEADINGS 

For the reasons that follow, Plaintiffs second motion to amend the complaint is denied and 

the cross motion for sanctions by Defendants, Metropolitan Transportation Authority and New 

York City Transit Authority (Transit) is also denied. 

Background 

This personal injury matter arises out of a motor vehicle accident between a Honda vehicle 

(Honda) and a Toyota vehicle (Toyota) in Queens County on December 31, 2019. It is alleged 

that the Honda, operated by Rayon Morgan became disabled and was stopped on the right lane of 

the road when the Toyota operated by Defendant lJttam Sa.madder (Samaddcr) and owned by 

Defendant Phillip Rabinowitz (Rabinowitz), hit the Honda. It is further alleged that at that time 

and date of the accident, the Toyota was operating under an Access-a-Ride vehicle in conjunction 

15318712021 CRUZADO, KEVEN vs. SAMADDER, UTT AM ET AL 

Motion No. 003 

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NYSCEF DOC. NO. 109 

INDEX NO. 153187/2021 

RECEIVED NYSCEF: 07/12/2024 

with Transit's Access-a-Ride/paratransit program. Plaintiff Kevin Cruzado was a passenger in the 

Toyota and alleges sustaining serious injuries. 

Pre-note of issue and prior to discovery conferences, Defendant Transit moved pursuant to 

CPLR 3211 to dismiss Plainti11~s second cause of action for negligent hiring, training, supervising 

and retention. Transit also moved to dismiss an unplcd cause of action for negligent cntrustment 

raised in Plaintiffs bill ofpartieulars. Plaintiff opposed and cross-moved to amend the complaint. 

By Order of this Court dat~d May 15, 2023, Motion Seq. 1, Transit's motion was granted, 

Plaintiff's cross-motion was denied without prejudice, and the parties were ordered to submit a 

proposed preliminary conference order by July 10, 2023. 

Plaintiff now moves again pursuant to CPLR 3025[b] to amend the complaint. Plaintiff 

alleges that the proposed additions should be granted as they solely amplify the already plead 

causes of actions for negligence and respondent superior against Transit and Rabinowitz. Transit 

opposes and alleges that Plaintiff's motion should be denied on the grounds that it is attempting to 

add dismissed causes of actions and that the new allegations arc devoid of merit. Transit also crossmoves for sanctions. 

Di."iCussion 

Plaintiffs 11-fotion to Amend the Complaint 

Pursuant to CPLR 3025 [b], a party at any time may freely amend or supplement their 

pleadings by setting forth additional or subsequent transactions or occurrences with leave of court 

or by stipulation by both sides (CPLR 3025 [b ]). While courts generally grant such motions, the 

proposed additions must be just, absent of prejudice and surprise to the opposing side, may not be 

lacking in merit, and may not circumvent a prior dismissal order (see CPLR 30251b], Panto v Jlvf 

Salvage Co., 157 AD2d 582 [1'1 Dept 1990]; Jacobson v MciVei/ Consumer & 5jxcialty Pharm, 

153187/2021 CRUZADO, KEVEN vs. SA MADDER, UTT AM ET AL 

Motion No. 003 

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NYSCEF DOC. NO. 109 

INDEX NO. 153187/2021 

RECEIVED NYSCEF: 07/12/2024 

68 AD3d 652 [1 st Dept 2009]; AfBIA Ins. Corp. v. Greys tone & Co .. Inc .. 7 4 i\D3d 499 [1 st Dept 

20 l O[: Societe Nationale D'r.:r:ploitation Induslrielle Des Tahacs Et Allwneltes v. Salomon Bros. 

Int'!, 268 A2d 373 llst Dept 2000]; Gross v. Neiman, 147 AD3d 505 !_1st Dept 2017]; DiPasquale 

v Securit_v Afutual L{fe Insurance, 293 A.D.2d 394 [1 st Dept 2002]). 

Here, Plaintiff's most substantive proposed additions concern Rabinowitz's and Transit's 

failure to qualify the driver and properly administer the Access-A-Ride program. For example, 

Plaintiff's proposed new paragraphs #35 and #37 read: 

"Defendant Rabinowitz and Defendant NYCTA O\vcd a duty to Plaintiff to 

exercise reasonable care in ensuring that their operators, employees, agents, and 

assigns were properly qualified to operate AAR vehicles, to do so in a non-negligent 

manner, and to ensure that they arc properly qualified in all motor vehicle harmreduction and collision-avoidance procedures/techniques." 

"Furthermore, Defendants NYCT A, MTA and Rabinowitz were negligent in 

that they did not ensure that Defendant Samadder was properly qualified in collisionavoidance procedures, and failed to ensure that Defendant Samadder was properly 

qualified to operate a motor vehicle in a manner which would minimize any potential 

damages in the event of a collision. Moreover, Defendants NYCTA, MTA and 

Rabinowitz negligently failed to ensure Defendant Samadder was properly qualified 

to operate the Vehicle, in that they failed to take measures to ensure that Defendant 

Samadder was fully qualified to operate a motor vehicle in a non-negligent manner of 

the date of the collision" (NYSCEF Doc. 63 ). 

153187/2021 CRUZADO, KEVEN vs. SAMADDER, UTT AM ET AL 

Motion No. 003 

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NYSCEF DOC. NO. 109 

INDEX NO. 153187/2021 

RECEIVED NYSCEF: 07/12/2024 

Upon review, Plaintiff rather that complying with this Court's Order to submit a proposed 

preliminary conference order, moved to amend the complaint without submitting any additional 

discovery and without any showing that such amendments would be sufficiently palpable and not 

deprived of merit (AfBJA Ins. Corp., 74 AD3d 499). Furthermore, granting such amendments 

would circumvent this Court's prior decision dismissing the cause of action for negligent training, 

supervision, hiring and retention and the cause of action for neg! igent entrustment against Transit 

(see Societe ,Vationale D'Exploitation Jndustrielle Des Tabacs Et Allumettes. 268 A2d 373; Gross, 

147 AD3d 505; DiPasquale, 293 A.D.2d 394). Accordingly, Plaintiff's motion to amend is denied." 

Transit's Cross-Motion/or Sanctions 

Transit also cross-moves for sanctions pursuant to 22 NYCRR § 1 30-1.1 (a), seeking 

attorney's fees related to Plaintiff's ii.ling of this instant motion. 

It is important to note that this Court denied Plaintiff's initial motion to amend without 

prejudice as Plaintiff did not offer any showing for the proposed additions. Also, by Order of this 

Court dated May 8, 2023, Motion Seq. 2, a separate action commenced in Queens CoW1ty Supreme 

Court by Honda driver, Plaintiff, Rayon Morgan, against the O'Wncr and operator of the Toyota, 

Defendants Rabinowitz and Samadder was consolidated with this action. 

In light of the above and the circumstances relating to this motion, this Court finds that 

Plaintiffs conduct does not rise to the level of frivolous conduct at this time (see e.g. Tavella v 

Tavella, 25 AD3d 523 fl st Dept 2006]). Accordingly, the cross-motion for sanctions is also denied. 

It is therefore 

ORDERED that Plaintiff's second motion to amend the complaint is denied in its entirety; 

it is further 

ORDERED that Transit's cross-motion for sanctions is also denied; it is further 

15318712021 CRUZADO, KEVEN vs. SAMADDER, UTT AM ET AL 

Motion No. 003 

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NYSCEF DOC. NO. 109 

INDEX NO. 153187/2021 

RECEIVED NYSCEF: 07/12/2024 

ORDERED that within 20 days, counsel for Plaintiff shall serve a copy of this Order with 

notice of entry upon al I parties and the Clerk of the Court; it is further 

ORDERED that this action is transferred to Part 21; and it is further 

ORDERED that the parties are to contact Part 21 within 30 days of entry of this Order to 

schedule a preliminary conference in compliance with Court rules and the existing Part 21 rules. 

7/1112024 

DATE 

CHECK ONE: 

APPLICATION: 

CHECK IF APPROPRIATE: ~ CASE DISPOSED 

GRANTED 0 DENIED 

SETTLE ORDER 

INCLUDES TRANSFER/REASSIGN 

15318712021 CRUZADO, KEVEN vs. SAMADDER, UTT AM ET AL 

Motion No. 003 

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NON-FINAL DISPOSITION 

GRANTED IN PART 

SUBMIT ORDER 

FIDUCIARY APPOINTMENT 

□ OTHER 

□ REFERENCE 

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