### 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 OPERATT G AUTHORITY Defendants

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INDEX NO. 151346/2020 MOTION SEQ. NO. __ 0_0

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0 ...;.. 04

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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 /RECONSIDERATION 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 PlaintiffZethroy 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 summaryjudgment 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

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### FILED: NEW YORK COUNTY CLERK 04/05/2024 04:59 PM INDEX NO. 151346/2020 NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 04/05/2024

2 of 4 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 ofthe accident when the bus driver suddenly applied the brakes. Plaintiffthen 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). PlaintiffMichal Cook was also a passenger on the public bus who alleged sustaining injuries as a result ofthis 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 tojudgment as a matter oflaw and opposing papers had not raised a material issue offact (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 [Ist Dept 2019]). Plaintiff THOMAS , BORREL, and VARGAS now move for reargument, pursuant to CPLR 2221, asserting that questions offact 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

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### FILED: NEW YORK COUNTY CLERK 04/05/2024 04:59 PM INDEX NO. 151346/2020 NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 04/05/2024

3 of 4 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 ofcare than common law. Upon reconsideration, this Court concludes again that TRA SIT's evidence properly established that VARGAS 'sdriving caused the accident by crossing in front ofthe 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 offact better suited for a trier offact 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 ofthis accident. Further, the preparer ofthe 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

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### FILED: NEW YORK COUNTY CLERK 04/05/2024 04:59 PM INDEX NO. 151346/2020 NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 04/05/2024

4 of 4 "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 offact did exist. 

### It is hereby, ORDERED that PlaintiffTHOMAS'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 ofthis Order with notice ofentry upon all parties and the Clerk ofthe Court in accordance with electronic filing.

4/5/2024

DATE 

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, DENISE M DOMINGUEZ, J.S.C. CHECK ONE : APPLICATION: CHECK IF APPROPRIATE : CASE DISPOSED 

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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

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