### 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 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. 143 INDEX NO. 152074/2020 RECEIVED NYSCEF: 09/16/2024 

### SUPREME COURT OF THE STATE OF NEWYORK NEWYORK COUNTY PRESENT: HON. RICHARD TSAI Justice

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CARMELO SERRANO, Plaintiff,

- V
- NEWYORK CITYTRANSITAUTHORITY, AZAD BACCHUS, LASSINE SOUMAHORO, and IBRAHIMA DOUKOURE, Defendants.

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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 SUMMARYJUDGMENT(AFTER JOINDER) SUMMARYJUDGMENT(AFTERJOINDER)
In this action arising out ofa motorvehicle collision, plaintiffalleges that, on November 1, 2019, he was a passengeron an M2 bus allegedlyoperated by defendant Azad Bacchus and allegedly owned by defendant NewYork CityTransitAuthority, which made contactwith 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 summaryjudgment in his favor against defendants NewYork CityTransit (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, plaintifftestified that, on November 1, 2019, he was a passengerofa 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 bythe NYCTA (Plaintiff's Exhibit E in support ofmotion, 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 ofthe 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 offpassengers 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 wayto 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 leftturning 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 quarterofthe 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 ofthe 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 ofthe bus (id. at 93, lines 6-13). According to Bacchus, there was a collision with a lime green taxi (id.at88, line 17; at 89, lines 19-21). He stated that he observed the front doorofthe taxi by the backwheel ofthe 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 appearfor 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 anysubstantive motion practice" (see NYSCEF Doc. No. 47; see also Plaintiff's Exhibit I in support ofmotion [NYSCEF Doc. No. 97]). DISCUSSION "On a motion for summaryjudgment, the moving party must make a prima showing ofentitlementtojudgment as a matterof law, tendering sufficient evidence to demonstrate the absence ofany material issues offact. Ifthe moving party produces the required evidence, the burden shifts to the nonmoving partyto establish the existence ofmaterial issues offact which require atrial ofthe action" (Xiang Fu He v Troon Mgt., Inc., 34 NY3d 167, 175 [2019] [internal citations and quotation marks omitted]). On a motion for summaryjudgment, "facts must be viewed in the light mostfavorable to the non-moving party" (Vega vRestani Const. Corp., 18 NY3d 499, 503 [2012] [internal quotation marks omitted]). I. Plaintiff's Motion for Partial Summary Judgment Plaintiffargues that he is entitled partial summaryjudgment in his favor against the Transit Defendants on the ground that Bacchus made an unsafe lane change in violation ofVehicle and Traffic Law§ 1128 (a) & (d). In support of his motion, plaintiff

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submitted deposition testimony, photographs taken atthe scene ofthe collision, and an unsworn report ofGeorge 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 ofTransit Defendants' counsel 

### ,I6). 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 tryto 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, plaintiffsubmits an affirmed report from Meinschein (see Plaintiff's ExhibitA to reply affirmation of plaintiff's counsel [NYSCEF Doc. No. 139]). Vehicle and Traffic Law§ 1128 (a) directs drivers to drivetheirvehicle "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 madewith safety." Although Bacchus testified that the bus was not entirely in the left lanewhen the collision occurred, photographs taken afterthe collision from behind the vehicles would appearto indicate that the width ofthe bus was too wide to be entirelywithin the left lane. Thus, drawing the inferences in the light most favorto the non-movants, an issue offact arises as to whetherthe bus was driving "as nearly as practicable" within a single lane. Plaintiffalso did not establish that Bacchus made an unsafe lane change, because the bus which Bacchus operated did not strike anyvehicle 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 ofthe taxicab made contact with the rear ofthe bus, which was corroborated by photographs taken at the scene of the collision, which show a green taxicab apparentlywedged between the M2 bus to the left, nearthe rear bus doors, and another bus to the right (see Plaintiff's Exhibit K [NYSCEF Doc. No. 99]). Viewing the facts in the light mostfavorable to the nonmovants, the evidence could support thatthe collision occurred when the taxi operated by Soumahoro continued to travel forward in the middle lane even when therewas inadequate space to proceed. Neither did plaintiffestablish 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 lanewhen it would be hazardousto 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 ofthe NewYork State Department of MotorVehicles

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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 lanewithin the space provided bythe 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 ofplaintiff's expert is not affirmed norsworn, and so it is inadmissible (Fiuzzi vParagon Sporting Goods Co. LLC, 212 AD3d 431, 433 [1st Dept 2023]). Although plaintiff provided an affirmed report in reply, plaintiffcannot cure this deficiency in his prima facie showing by submitting evidence forthe first time in reply (see e.g. American Tr. Ins. Co. vLongevityMed. 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 vRent-A-Ctr., Inc., 276 AD2d 58, 61 [1st Dept 2000]; Measom v Greenwich andPerrySt. 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 ofstriking 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 attemptto cross the solid line. Thatwas not the case here. Therefore, plaintiff's motion for partial summaryjudgment in hisfavor againstthe Transit Defendants is denied.
II. Defendants Soumahoro and Doukoure's cross motion for summaryjudgment Defendants Soumahoro and Doukoure cross-move for summaryjudgment dismissing the complaint and all cross claims against them on the same grounds raised in plaintiff's motion for partial summaryjudgment in his favor againstthe Transit Defendants. Their cross motion is denied, for the same reasons set forth above in the discussion of plaintiff's motion for partial summaryjudgment.
CONCLUSION Accordingly, it is hereby ORDERED that plaintiff's motion for partial summaryjudgment as to liability in plaintiff's favor against defendants NewYork City TransitAuthority and Azad Bacchus is DENIED; and it is further ORDERED that defendants Lassine Soumahoro and lbrahima Doukoure's cross

1Plaintiffdid not submit acopy oftheNYS Department ofMotorVehicles VehicleDriver'sManual. However, the TransitDefendants neitherobjectednordisputedthatthe quotedexcerptwas accurate andapplicable.

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motion for summaryjudgmentdismissing the complaint and all cross claims against them is DENIED.

9/16/2024

DATE CHECKONE: Plaintiff's Motion Cross Motion APPLICATION: CHECK IF APPROPRIATE: CASE DISPOSED GRANTED 

# ffi
DENIED GRANTED DENIED SETTLE ORDER INCLUDES TRANSFER/REASSIGN

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RICHARD TSAI, J.S.C. X NON-FINAL DISPOSITION GRANTED IN PART 

# B OTHER GRANTED IN PART OTHER SUBMIT ORDER FIDUCIARYAPPOINTMENT**□** REFERENCE

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