### 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

York State Unified Court System's eCourts Service. 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


### Forthe reasonsthatfollow, Plaintiffs second motionto amendthe 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 matterarises outofamotorvehicle accidentbetween a Honda vehicle (Honda) and a Toyota vehicle (Toyota) in Queens County on December 31, 2019. It 

### is alleged that the Honda, operatedby 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 ofthe accident, the Toyota was operating under an Access-a-Ride vehicle in conjunction

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### [* 1]NYSCEF DOC. NO. 109 INDEX NO. 153187/2021 RECEIVED NYSCEF: 07/12/2024
withTransit's Access-a-Ride/paratransitprogram. PlaintiffKevin Cruzado was apassenger in the Toyota and alleges sustaining serious injuries. Pre-noteofissue and

### priorto discovery conferences, Defendant Transitmoved pursuantto CPLR 3211 to dismiss Plainti11~s second cause ofaction for negligent hiring, training, supervising and retention. Transit also moved to dismiss an unplcd cause ofaction for negligent cntrustment raised in Plaintiffs bill ofpartieulars. Plaintiffopposed 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 orderby July 10, 2023. Plaintiffnow 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 ofactions for negligence and respondent superior against Transit and Rabinowitz. Transit opposes and allegesthat Plaintiff'smotion should be denied onthe grounds that it is attempting to add dismissedcauses ofactions andthatthe newallegations arc devoidofmerit. Transit also crossmoves for sanctions. Di."iCussion Plaintiffs 11-fotion toAmendthe 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 ofcourt orby stipulation by both sides (CPLR 3025 [b]). While courts generally grant such motions, the proposed additions must bejust, absent ofprejudice 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. SAMADDER, UTTAM ET AL Motion No. 003 2 of 5 Page 2 of 5 

### [* 2]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.. 74 i\D3d 499 [1 st Dept 

### 20lO[: Societe Nationale D'r.:r:ploitation Induslrielle Des Tahacs Et Allwneltes v. Salomon Bros. Int'!, 268 A2d 373 llstDept 2000]; Gross v. 

### Neiman, 147 AD3d 505 !_1st Dept2017]; DiPasquale
v Securit_vAfutual 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 newparagraphs#35 and#37 read: "Defendant Rabinowitz and Defendant NYCTA O\vcd a duty to Plaintiffto 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-avoidanceprocedures/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 Samadderwas fully qualified to operate a motorvehicle in a non-negligent mannerof the date ofthe collision" (NYSCEF Doc. 63).

153187/2021 CRUZADO, KEVEN vs. SAMADDER, UTTAM ET AL Motion No. 003 3 of 5 Page 3 of 5 

### [* 3]NYSCEF DOC. NO. 109 INDEX NO. 153187/2021 RECEIVED NYSCEF: 07/12/2024 Upon review, Plaintiffrather 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'sprior decision dismissing the cause ofaction for negligenttraining, supervision, hiring and retention and the cause ofaction for neg!igent entrustment against Transit (see 

### Societe ,Vationale

### D'Exploitation Jndustrielle Des Tabacs 

### EtAllumettes. 268 A2d 373; 

### Gross, 147 AD3d 505; 

### DiPasquale, 293 A.D.2d394). Accordingly, Plaintiff'smotionto amendis denied." 

### Transit's Cross-Motion/orSanctions Transit also cross-moves for sanctions pursuant to 22 NYCRR §130-1.1(a), seeking attorney's fees related to Plaintiff's ii.ling ofthis instant motion. It is important to note that this Court denied Plaintiff's initial motion to amend without prejudice as Plaintiffdid not offer any showing for the proposed additions. Also, by Order ofthis Court datedMay 8, 2023, Motion Seq. 2, a separate action commencedin Queens CoW1ty Supreme Court by Honda driver, Plaintiff, Rayon Morgan, against the O'Wncr and operator ofthe Toyota, Defendants Rabinowitz and Samadder was consolidated with this action. In light ofthe above and the circumstances relating to this motion, this Court finds that Plaintiffs conduct does not rise to the level offrivolous conduct at this time (see e.g. 

### Tavella v Tavella, 25 AD3d 523 

## fl st Dept2006]). Accordingly, thecross-motionfor 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
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### [* 4]NYSCEF DOC. NO. 109 INDEX NO. 153187/2021 RECEIVED NYSCEF: 07/12/2024


### ORDERED that within 20 days, counsel for Plaintiffshall serve a copy ofthis Order with notice ofentry upon alIparties and the Clerk ofthe 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 ofentry ofthis 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, UTTAM ET AL Motion No. 003
5 of 5 NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT

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