Thomas v New York City Tr. Auth.

2024 NY Slip Op 31130(U)

April 5, 2024

Supreme Court, New York County

Docket Number: 151346/2020

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.
FILED: NEW YORK COUNTY CLERK 04/05/2024 04:59 PM INDEX NO. 151346/2020

NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 04/05/2024

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SUPREME COURT OF THE STATE OF NEW YORK 

NEW YORK COUNTY 

PRESE T: HON. DENISE M DOMINGUEZ 

Jw;tice 

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ZETHROY THOMAS, 

Plaintiff 

- V -

NEW YORK CITY TA SIT AUTHORITY, EDWARD D. 

DOUCE, EMMA UEL VARGAS BORREL, VICTOR M. 

BORREL, MANHATTAN AND BRONX SURFACE TRANSIT 

OPERA TT G AUTHORITY 

Defendants 

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PART 35M 

INDEX NO. 151346/2020 

MOTION SEQ. NO. __ 0_0..c.. 3.....;. 0...;.. 04 _ _ 

DECISION AND ORDER ON 

MOTION 

The following e-filed documents, listed by YSCEF document number (Motion 003) 69, 70, 71, 72, 73 , 74, 75, 76, 

77 , 78 , 84, 86,87, 92, 94,95 

were read on this motion to/for REARGUMENT/RECONSIDERA TION 

The following e-filcd documents, listed by NYSCEF document number (Motion 004) 79, 80, 81 , 82, 83, 85, 88, 89, 

90,91 , 93 

were read on this motion to/for REARGUME T/RECONSIDERATIO 

Plaintiff Zethroy Thomas (THOMAS), in motion Seq. 3, and Defendants Victor M. Barrel 

(BORREL) and Emmanuel Barrel-Vargas (VARGAS) in motion Seq. 4, move for reargument of 

this Court's Decision and Order, granting summary judgment to Co-Defendants, New York City 

Transit Authority, Metropolitan Transportation Authority, MTA Bus Company, Manhattan and 

Bronx Surface Transit Operating Authority, Edward D. Douce's (TRANSIT). 

Upon reconsideration, these motions are granted and the previously granted motion for 

summary judgment to TRA SIT (Motion Seq. 2) is now denied. 

Background 

This personal mJury matter anses out a collision between a public 

bus, operated by TRANSIT bus driver, Defendant Edward D. Douce (DOUCE), and a motor 

15134612020 THOMAS, ZETHROY vs. NEW YORK CITY TANS IT AUTHORITY 

Motion No. 003 004 

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vehicle owned by BORREL and operated by VARGAS. Plaintiff, a passenger on the public bus, 

alleges that on June 13, 2019, at or near the intersection of West 125th Street and Amsterdam 

Avenue in Manhattan, he sustained injuries as a result of the accident when the bus driver suddenly 

applied the brakes. Plaintiff then commenced a negligence action against TRANSIT, BORREL 

and VARGAS. 

This Court notes that this action was joined for the purposes of trial and discovery by 

Decision and Order (Adam, J) with related matter captioned, Michael Cook v. New York City 

Transit Authority et al., Index No. 450720/2021 (NYSCEF Doc. 25). Plaintiff Michal Cook was 

also a passenger on the public bus who alleged sustaining injuries as a result of this same accident 

and commenced a negligence action against the same Defendants. 

Post-note of issue, TRANSIT moved for summary judgment in both matters. In both 

matter, this Court found that based on the evidence submitted and primarily relying on the bus 

video, TRANSIT had established entitlement to judgment as a matter of law and opposing papers 

had not raised a material issue of fact (see e.g., Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; 

Santana v. Metro. Tramportation Co., 170 A.D.3d 551 [1st Dept 2019); Clayson v. Williams, 203 

AD3d 656, [1st Dept 2022]; see also Rodriguez v. New York City Transit Auth., 172 AD3d 508 

[ I st Dept 2019]). 

Plaintiff THOMAS, BORREL, and VARGAS now move for reargument, pursuant to 

CPLR 2221, asserting that questions of fact remain regarding TRA SIT' s liability and rely upon 

a previously submitted TRANSIT investigative memorandum. TRANSIT opposes. 

Discussion 

In considering a timely motion for leave to reargue pursuant to CPLR 2221 , this Court may 

grant such application upon a showing that it overlooked or misapprehended the facts or the law 

151346/2020 THOMAS, ZETHROY vs. NEW YORK CITY T ANSIT AUTHORITY 

Motion No. 003 004 

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or for some reason mistakenly arrived at its earlier decision (see CPLR 2221 [d][2]; William P. 

Pahl Equip. Corp. v. Kassis, 182 AD2d 22 [l st Dept 1992)). 

Here, the movants timely move for reargument and rely upon TRANSJT's investigative 

memorandum to argue that issues of fact exist that were overlooked. Specifically, the movants 

highlight that the memorandum concludes that multiple factors contributed to the collision 

including Defendant's VARGAS actions but also that their own bus driver should have applied 

better defensive driving skills. In opposition, TRANSIT argues that the internal memo cannot be 

considered for purposes of TRANSIT's liability since it is based on internal rules, regulations, 

guideline, protocols, policy practices or procedures that hold TRANSIT employees to a higher 

standard of care than common law. 

Upon reconsideration, this Court concludes again that TRA SIT's evidence properly 

established that VARGAS's driving caused the accident by crossing in front of the bus. VARGAS' 

actions created the situation that caused bus driver DOUCE to suddenly apply the brakes and cause 

Plaintiffs injuries, making the emergency doctrine applicable and DOUCE's actions reasonable. 

However, upon further reconsideration, this Court now concludes that the memorandum 

raises a question of fact better suited for a trier of fact to decide- whether TRANSIT contributed 

at all to the accident (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Here the memo was 

prepared approximately eight (8) days after the accident and was based on ] RANSIT's own 

investigation conducted the day of the accident. Unlike other general policies and protocols by 

TRANSIT that hold their employees to a higher standard than common law negligence, this 

investigative memo was prepared specifically because of this accident. Further, the preparer of the 

memo, a TRANSIT employee, also considered the bus video and the statements given by the 

drivers. The memo concluded that multiple factors led to the accident, including that DOUCE 

151346/2020 THOMAS, ZETHROY vs. NEW YORK CITY TANSIT AUTHORITY 

Motion No. 003 004 

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"failed to employ all the necessary defensive driving skills to avoid the collision" 

Accordingly, while it is evident that VARGAS caused the accident, the preparer of the 

memo was not deposed, and the direct and cross-examination of this witnesses is necessary to 

eliminate all questions of fact as to any liability by TRANSIT. Thus, TRANSIT established a 

prima facia showing, but a material. question of fact did exist. 

It is hereby, 

ORDERED that Plaintiff THOMAS's motion to reargue (Motion Seq . 3) and Defendants 

BORREL and VARGAS ' motion to reargue (Motion Seq. 4), pursuant to CPLR 2221 are granted; 

and it is further 

ORDERED that within 20 days from the entry of this Order, Plaintiff TI OMAS and 

Defendants BORREL and VARGAS shall serve a copy of this Order with notice of entry upon all 

parties and the Clerk of the Court in accordance with electronic filing. 

4/5/2024 

DATE 

~( 

, DENISE M DOMINGUEZ, J.S.C. 

CHECK ONE: 

APPLICATION: 

CHECK IF APPROPRIATE: 

CASE DISPOSED 8 NON-FINAL DISPOSITION 

GRANTED □ DENIED GRANTED IN PART 

SETTLE ORDER SUBMIT ORDER 

INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 

15134612020 THOMAS, ZETHROY vs. NEW YORK CITY TANSIT AUTHORITY 

Motion No. 003 004 

□ OTHER 

□ REFERENCE 

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