Serrano v New York City Tr. Auth.

2024 NY Slip Op 33225(U)

September 16, 2024

Supreme Court, New York County

Docket Number: Index No. 152074/2020

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. 143 

INDEX NO. 152074/2020 

RECEIVED NYSCEF: 09/16/2024 

SUPREME COURT OF THE STATE OF NEW YORK 

NEW YORK COUNTY 

PRESENT: HON. RICHARD TSAI 

Justice 

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CARMELO SERRANO, 

Plaintiff, 

- V -

NEW YORK CITY TRANSIT AUTHORITY, AZAD 

BACCHUS, LASSINE SOUMAHORO, and IBRAHIMA 

DOU KOU RE, 

Defendants. 

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PART 

INDEX NO. 152074/2020 

MOTION DATE 10/20/2023 

MOTION SEQ. NO. 004 

DECISION + ORDER ON 

MOTION 

21 

The following e-filed documents, listed by NYSCEF document numbers (Motion 004) 47, 87-100, 115, 

116-126, 132, 133-139 

were read on this motion for 

were read on this cross motion for 

PARTIAL SUMMARY JUDGMENT(AFTER 

JOINDER) 

SUMMARY JUDGMENT(AFTER JOINDER) 

In this action arising out of a motor vehicle collision, plaintiff alleges that, on 

November 1, 2019, he was a passenger on an M2 bus allegedly operated by defendant 

Azad Bacchus and allegedly owned by defendant New York City Transit Authority, 

which made contact with a vehicle allegedly operated by defendant Lassine Soumahoro 

and allegedly owned by defendant lbrahima Doukoure (Plaintiff's Exhibit B, complaint ,m 

7, 9, 21, 22 [NYSCEF Doc. No. 90]). 

Plaintiff now moves for partial summary judgment in his favor against defendants 

New York City Transit (NYCTA) and Azad Bacchus (the Transit Defendants). 

Defendants Lassine Soumahoro and lbrahima Doukoure cross-move for summary 

judgment dismissing the complaint and all cross claims against them. The Transit 

Defendants oppose plaintiff's motion and co-defendants' cross motion. 

BACKGROUND 

At his deposition, plaintiff testified that, on November 1, 2019, he was a 

passenger of a NYCTA bus, which was involved in an accident between 154th and 

155th Streets and Adam Clayton Boulevard (Plaintiff's Exhibit G, Serrano EBT at 15, 

lines 18-23; at 16, lines 1-4 [NYSCEF Doc. No. 95]). 

At his deposition, Bacchus testified that he is a bus operator employed by the 

NYCTA (Plaintiff's Exhibit E in support of motion, Bacchus EBT, at 12, lines 5-17 

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[NYSCEF Doc. No. 123]). He stated that, on November 1, 2019, he was the bus driver 

at the time of the accident, which occurred on Adam Clayton Powell Boulevard, 

between 154th & 155th Streets (id. at 27, lines 7-15). 

Bacchus testified as follows: three blocks before the accident occurred, Bacchus 

had dropped off passengers on 151st Street (id. at 66, lines 5-10). After he left the stop, 

he drove on Adam Clayton Powell Boulevard to get into the left lane (id. at 67, lines 21-

22). Bacchus stated that he was in the right traveling lane all the way to 153rd Street, 

and that he switched to the middle lane at 153rd Street (id. at 69, lines 12-16). Between 

West 154th and West 155th Streets, he moved into the left turning lane (id. at 71, lines 

15-16). Bacchus stated that the front three quarters of his bus was in the left turning 

lane, while a quarter of the bus was in the first moving lane (id. at 74, lines 3-7). 

According to Bacchus, "The bus is 40 feet so it take [sic] two lanes to get it straight" (id. 

at 71, lines 7-8). Bacchus stated that the front of the bus was less than a foot away 

from the center divider (id. at 110, lines 23 through 111, lines 7). 

Bacchus stated that he felt his bus shake, and when he looked in the mirror, he 

saw a taxi on the side of the bus (id. at 93, lines 6-13). According to Bacchus, there 

was a collision with a lime green taxi (id.at 88, line 17; at 89, lines 19-21 ). He stated 

that he observed the front door of the taxi by the back wheel of the bus (id. at 96, line 25 

through 97, lines 2-13). Bacchus testified that he did not see the taxicab before the 

collision (id. at 91, lines 20-22). 

Defendant Soumahoro did not appear for a deposition. By a decision and order 

dated December 15, 2022, "Lassine Soumahoro [was] precluded from testifying at trial 

and submitting an affidavit in support or in opposition to any substantive motion 

practice" (see NYSCEF Doc. No. 47; see also Plaintiff's Exhibit I in support of motion 

[NYSCEF Doc. No. 97]). 

DISCUSSION 

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

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]). 

On a motion for summary judgment, "facts must be viewed in the light most favorable to 

the non-moving party" (Vega v Restani Const. Corp., 18 NY3d 499, 503 [2012] [internal 

quotation marks omitted]). 

I. Plaintiff's Motion for Partial Summary Judgment 

Plaintiff argues that he is entitled partial summary judgment in his favor against 

the Transit Defendants on the ground that Bacchus made an unsafe lane change in 

violation of Vehicle and Traffic Law§ 1128 (a) & (d). In support of his motion, plaintiff 

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submitted deposition testimony, photographs taken at the scene of the collision, and an 

unsworn report of George H. Meinschein, P.E., among other exhibits (see Plaintiff's 

Exhibits A-K [NYSCEF Doc. Nos. 89-99]). 

In opposition, the Transit Defendants object to Meinschein's report as unsworn 

(affirmation of Transit Defendants' counsel ,I 6). The Transit Defendants contend that 

Bacchus did not violate Vehicle and Traffic Law§ 1128 (a) because he moved into the 

left turn lane was empty (id. ,I 9). The Transit Defendants assert that the collision 

occurred because the taxicab attempted to try to get pass the bus before it had 

completely moved into the left turning lane, citing the report of its own expert, Anthony 

Cornetta (id. ,I 11-12; Transit Defendants' Exhibits B and C [NYSCEF Doc. Nos. 135 

and 136] 

In reply, plaintiff submits an affirmed report from Meinschein (see Plaintiff's 

Exhibit A to reply affirmation of plaintiff's counsel [NYSCEF Doc. No. 139]). 

Vehicle and Traffic Law§ 1128 (a) directs drivers to drive their vehicle "as nearly 

as practicable within a single lane and shall be moved from such lane until the driver 

has ascertained that such movement can be made with safety." 

Although Bacchus testified that the bus was not entirely in the left lane when the 

collision occurred, photographs taken after the collision from behind the vehicles would 

appear to indicate that the width of the bus was too wide to be entirely within the left 

lane. Thus, drawing the inferences in the light most favor to the non-movants, an issue 

of fact arises as to whether the bus was driving "as nearly as practicable" within a single 

lane. 

Plaintiff also did not establish that Bacchus made an unsafe lane change, 

because the bus which Bacchus operated did not strike any vehicle in the left turning 

lane as Bacchus was moving into the left turning lane. 

Additionally, as NYCTA and Bacchus point out, the taxi was behind the bus when 

Bacchus changed lanes. Bacchus testified that the front of the taxicab made contact 

with the rear of the bus, which was corroborated by photographs taken at the scene of 

the collision, which show a green taxicab apparently wedged between the M2 bus to the 

left, near the rear bus doors, and another bus to the right (see Plaintiff's Exhibit K 

[NYSCEF Doc. No. 99]). Viewing the facts in the light most favorable to the nonmovants, the evidence could support that the collision occurred when the taxi operated 

by Soumahoro continued to travel forward in the middle lane even when there was 

inadequate space to proceed. 

Neither did plaintiff establish that Bacchus violated Vehicle and Traffic Law§ 

1128 (d), which states, "When official markings are in place vehicles may not cross over 

into an adjoining lane when it would be hazardous to do so." Here, plaintiff's expert 

concluded that Bacchus crossed over a solid white into the left turning lane, which the 

Vehicle Driver's Manual of the New York State Department of Motor Vehicles 

152074/2020 SERRANO, CARMELO vs. NEW YORK CITY TRANSIT 

Motion No. 004 

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purportedly explains is not allowed (see Plaintiff's Exhibit J at 5 ["Mr. Bacchus failed to 

move the bus into the dedicated left turn lane within the space provided by the 

pavement markings"]). 1 Thus, plaintiff's expert concludes that Bacchus failed to operate 

the bus in compliance with Vehicle and Traffic Law§ 1168 (d) (id. at 6). 

However, as the Transit Defendants point out, the report of plaintiff's expert is not 

affirmed nor sworn, and so it is inadmissible (Fiuzzi v Paragon Sporting Goods Co. LLC, 

212 AD3d 431, 433 [1st Dept 2023]). Although plaintiff provided an affirmed report in 

reply, plaintiff cannot cure this deficiency in his prima facie showing by submitting 

evidence for the first time in reply (see e.g. American Tr. Ins. Co. v Longevity Med. 

Supply, Inc., 131 AD3d 841, 842 [1st Dept 2015]). 

In any event, the opinion of plaintiff's expert that Bacchus violated Vehicle and 

Traffic Law§ 1128 (d) is an impermissible legal conclusion (Colon v Rent-A-Ctr., Inc., 

276 AD2d 58, 61 [1st Dept 2000]; Measom v Greenwich and Perry St. Haus. Corp., 268 

AD2d 156, 159 [1st Dept 2000]). Second, the hazard envisioned in Vehicle and Traffic 

Law§ 1128 (d) when crossing over into an adjoining lane is the hazard of striking any 

vehicle traveling in the adjoining lane separated by the solid white lane marking, so that 

the driver in the adjoining lane could reasonably expect that no vehicle the middle lane 

would attempt to cross the solid line. That was not the case here. 

Therefore, plaintiff's motion for partial summary judgment in his favor against the 

Transit Defendants is denied. 

II. Defendants Soumahoro and Doukoure's cross motion for summary judgment 

Defendants Soumahoro and Doukoure cross-move for summary judgment 

dismissing the complaint and all cross claims against them on the same grounds raised 

in plaintiff's motion for partial summary judgment in his favor against the Transit 

Defendants. 

Their cross motion is denied, for the same reasons set forth above in the 

discussion of plaintiff's motion for partial summary judgment. 

CONCLUSION 

Accordingly, it is hereby 

ORDERED that plaintiff's motion for partial summary judgment as to liability in 

plaintiff's favor against defendants New York City Transit Authority and Azad Bacchus is 

DENIED; and it is further 

ORDERED that defendants Lassine Soumahoro and lbrahima Doukoure's cross 

1 Plaintiff did not submit a copy of the NYS Department of Motor Vehicles Vehicle Driver's Manual. However, the 

Transit Defendants neither objected nor disputed that the quoted excerpt was accurate and applicable. 

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motion for summary judgment dismissing the complaint and all cross claims against 

them is DENIED. 

9/16/2024 

DATE 

CHECK ONE: 

Plaintiff's Motion 

Cross Motion 

APPLICATION: 

CHECK IF APPROPRIATE: 

CASE DISPOSED 

GRANTED ffi DENIED 

GRANTED DENIED 

SETTLE ORDER 

INCLUDES TRANSFER/REASSIGN 

15207 4/2020 SERRANO, CARMELO vs. NEW YORK CITY TRANSIT 

Motion No. 004 

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20240916151500RTS~A~3B155AF4102F96F56 

RICHARD TSAI, J.S.C. 

X NON-FINAL DISPOSITION 

GRANTED IN PART B OTHER 

GRANTED IN PART OTHER 

SUBMIT ORDER 

FIDUCIARY APPOINTMENT □ REFERENCE 

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