Pless v Tapia

2024 NY Slip Op 32234(U)

July 2, 2024

Supreme Court, New York County

Docket Number: Index No. 150946/2023

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. 63 

INDEX NO. 150946/2023 

RECEIVED NYSCEF: 07/03/2024 

SUPREME COURT OF THE STATE OF NEW YORK 

NEW YORK COUNTY 

PRESENT: HON. RICHARD TSAI 

Justice 

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KARAL YN PLESS, 

Plaintiff, 

- V -

DESIREE TAPIA, NEW YORK CITY TRANSIT 

AUTHORITY, MANHATTAN AND BRONX SURFACE 

TRANSIT OPERATING AUTHORITY, METROPOLITAN 

TRANSPORTATION AUTHORITY, ISAIAH J. ADAMS and 

ANITA M. ADAMS, 

Defendants. 

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PART 

INDEX NO. 150946/2023 

MOTION DATE 09/27/2023 

MOTION SEQ. NO. 001 

DECISION + ORDER ON 

MOTION 

The following e-filed documents, listed by NYSCEF document number (Motion 001) 24-37 and 39-46 

were read on this motion to/for JUDGMENT - SUMMARY 

21 

This action involves a motor vehicle collision between a bus and another vehicle 

which allegedly occurred on April 28, 2022, on Lenox Avenue, between 120th Street 

and 119th Street in Manhattan. The bus was allegedly operated by defendant Desiree 

Tapia and allegedly owned by defendants MTA Bus Company, Manhattan and Bronx 

Surface Transit Operating Authority, Metropolitan Transportation Authority and New 

York City Transit Authority (collectively, Transit Defendants). The other vehicle was 

allegedly owned by defendant Anita Adams and operated by defendant Isaiah Adams 

(Car Defendants). Plaintiff Karlyn Pless was a bus passenger. 

The Transit Defendants now move for summary judgment dismissing plaintiff's 

complaint and dismissing the Car Defendants' cross-claims against them, based on the 

emergency doctrine. Plaintiff and the Car Defendants oppose the motion. 

BACKGROUND 

In an affidavit, Desiree Tapia avers that she is "currently employed as a Bus 

Operator by Manhattan and Bronx Surface Transit Operating Authority ('MABSTOA')," 

since October 2021 (Transit Defendants' Exhibit G [NYSECF Doc. No 34] Tapia 

Affidavit ,i 1). 

Tapia admits that, on April 28, 2022, she was "operating bus 5821" on the "M101 

route" "when an accident occurred at approximately 11: 17 a.m. on Lenox Avenue 

between 120th Street and 119th Street" (id. ,i 2). According to Tapia, Lenox Avenue is "a 

two-way street with two lanes for moving traffic" (id. ,i 3), and she was operating the bus 

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"in the right lane and did not depart from the right lane at any time immediately before 

the accident or during the accident" (id. ,i 3). 

According to Tapia, as she was driving south bound "in the right-hand lane, a 

white BMW that was in the left-hand lane suddenly cut in front of the bus, from left to 

right, and the white BMW struck the left front of the bus" (id. ,i 4 ). Tapia states that the 

"speed of the bus was within the speed limit of 25 MPH during the entire occurrence" 

(id. ,i 4 ). 

In an unsworn accident report dated April 28, 2022, defendant Tapia wrote, "I 

was going south bound on Lenox Avenue and 119th on my right hand side when a white 

BMW (ZWF.84G) cut in front of me hitting the front side of the bus" (Transit Defendants' 

Exhibit H [NYSECF Doc. No 35] Accident Reports at 1-2). 

DISCUSSION 

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

facie 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]). 

In support of their motion, the Transit Defendants argue that the bus operator 

was faced with an emergency, relying upon Tapia's affidavit, the unsworn accident 

reports, and video footage from the bus. 1 

1 The Transit Defendants originally submitted the video footage on a CD and DVD to the court 

on 4/16/24 and 4/22/24, respectively, but the video footage was not playable. On 5/22/24, 

Transit Defendants provided the court and the opposing parties with a link to "Kiteworks (the 

Transit Defendants' virtual file sharing program) to download the video footage. 

The court was able to download and view a file named: "220428-5821-1120-00000.NH16.avs," 

which is the identical name of the file referenced in the affidavits of those who retrieved the 

video footage and created the CD (see Transit Defendant's Exhibits E and F [NYSCEF Doc. 

Nos. 32 and 33]). The name of the file of the video footage is also referenced in the Transit 

Defendants' affirmation in support of motion [NYSCEF Doc. No. 26] iT 8-9). 

At oral argument on June 21, 2024 via MS Teams, the video footage was published and 

played for the parties' counsel. No party raised any objections with respect to this downloaded 

footage. 

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The emergency doctrine 

"recognizes that when an actor is faced with a sudden and unexpected 

circumstance which leaves little or no time for thought, deliberation or 

consideration, or causes the actor to be reasonably so disturbed that the 

actor must make a speedy decision without weighing alternative courses 

of conduct, the actor may not be negligent if the actions taken are 

reasonable and prudent in the emergency context, provided the actor has 

not created the emergency" 

(Caristo v Sanzone, 96 NY2d 172, 174 [2001] [internal citations and quotation marks 

omitted]). Video evidence can be relied upon to establish the emergency doctrine (see 

Rodriguez v New York City Tr. Auth., Supra). 

Here, the time-stamped footage not only contains footage from eight different bus 

cameras, but also provides data regarding the speed, direction, and geographic location 

of the bus. The footage begins at 11 :05:00 AM and ends at 11 :35:13 AM on April 28, 

2022. The video footage establishes the following: 

11:17:50AM 

11:17:52AM 

11:17:54AM 

11 :17:54 AM 

11:17:55AM 

The bus is travelling south-southwest in the right lane on Malcolm X 

Boulevard2 between 121 st and 120th Streets, at a speed of 18 mph. 

From the camera which has a view of the rear entrance of the bus 

(Camera Analog 6), a vehicle is seen travelling alongside the bus in 

the left lane, going faster than the bus. Meanwhile, the bus is 

travelling at 20 mph. 

From the same camera view (Camera Analog 6), the Car 

Defendants' vehicle can be seen travelling in the left lane alongside 

the bus two seconds later, going faster than the bus. Meanwhile, 

the bus is traveling at 20 mph. 

From the forward camera view of the bus (Forward camera), the 

right front tire of the same vehicle that was traveling alongside the 

bus at 11 :17:52 a.m. is now seen coming into the frame of view in 

the left lane. 

From the forward camera view of the bus, the same vehicle that 

was traveling alongside the bus at 11: 17:52 a.m. is now seen 

entirely within the frame and traveling in the left lane. The rear 

brake lights of the vehicle appear for less than a second. At this 

time, the bus is travelling in right lane at 23 mph. 

2 Malcolm X Boulevard is also known as "Lenox Avenue". 

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11:17:56AM 

11 :17:56 AM 

11:17:57 AM 

11:17:58AM 

11 :17:59 AM 

11:18:01 AM 

11:18:02AM 

INDEX NO. 150946/2023 

RECEIVED NYSCEF: 07/03/2024 

From the forward camera view, the rear brake lights of the vehicle 

in the left lane vehicle are now off, the vehicle continues travelling 

forward in the left lane. Meanwhile, the bus is travelling in right lane 

at 23 mph. 

From the forward camera view, the Car Defendants' vehicle veers 

into right lane directly in front of bus. At this moment, the bus is 

travelling in right lane at 23 mph. 

From the forward camera view, the car Defendants' vehicle veers 

further into right lane. At this moment, the bus travelling in right lane 

at 23 mph, but increases to 24 mph. 

From the forward camera view, the Car Defendants' vehicle collides 

with what appears to be an outdoor dining shed located in the 

parking lane and then veers to the left. At this moment, the bus is 

travelling in right lane at 24 mph. 

From the forward camera view, the bus travelling in right lane 

appears to stop next to the dining shed. At this moment, the speed 

of the bus is 22 mph. The Car Defendants' vehicle slows. 

From the forward camera view, the bus travelling in right lane 

comes to a complete stop. At this moment, the speed of the bus is 

10 mph, then 4 mph. 

From the forward camera view, Car Defendant's vehicle stops in 

right lane (Forward camera). Bus travelling in right lane at 4 mph 

then 0 mph. 

Based on the video footage, the Transit Defendants established their prima facie 

entitlement to summary judgment as a matter of law, based on the emergency doctrine. 

The bus is traveling in its own lane under the speed limit of 25 mph (34 RCNY § 4-06). 

The Car Defendants' vehicle veered into the path of the bus two seconds after it had 

passed the bus. Two seconds later, the bus stops because the Car Defendants' vehicle 

collided with the outdoor dining shed. Given that only two seconds passed between the 

time that the Car Defendants' vehicle cross into the lane of travel of the bus and the 

stopping of the bus, the Transit Defendants met their prim a facie burden that the bus 

operator's actions in stopping to avoid striking the Car Defendants' vehicle was 

reasonable (see Febres v Metropolitan Transp. Auth., 220 AD3d 462, 462 [1st Dept 

2023]; Santana v Metropolitan Transp. Co., 170 AD3d 551 [2019]; Orsos v Hudson Tr. 

Corp., 111 A.D.3d 561 [2013]). 

In opposition, Isaiah Adams claims that "the co-defendant's vehicle, operated by 

Desire Tapia, was driving at an excessive rate of speed. At no time did the codefendant sound her horn, try to move to the left, apply her brakes or slow down to 

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avoid the collision" (Car Defendants' Exhibit A in opposition, Adams Affidavit ,m 10-11 

[NYSCEF Doc. No. 40]). The Car Defendants also argue that Isaiah Adams, the driver 

of the other vehicle, was faced with an emergency situation himself (affirmation of Car 

Defendants' counsel in opposition ,m 12-17 [NYSCEF Doc. No. 39]). Finally, they argue 

that summary judgment is premature (id. ,m 22-28). 

In opposition, plaintiff argues that "the videographic evidence shows that there is 

no emergency situation to warrant a sudden and violent stop" (affirmation of plaintiff's 

counsel in opposition ,i 22 [NYSCEF Doc. No. 43]). Rather, plaintiff contends, "If the 

bus operator had been more cognizant of his surroundings, the white BMWs movement 

would not have been 'sudden' and unexpected as how the co-defendants characterize 

it" (id. ,i 20). According to plaintiff, "any prospective movement by the white BMW could 

have been easily anticipated by the co-defendant MT A bus had he kept a proper look 

out" (id. ,i,i 26; see also id. ,i,i 29-33). Lastly, plaintiff argues that the Transit 

Defendants' motion is premature (id. ,i,i 23-24, 34-37). 

Contrary to plaintiff's and the Car defendants' arguments, the motion for 

summary judgment by the Transit Defendants is not premature, because information as 

to why Isaiah Adams's vehicle made contact with the bus and crossed over into the lane 

of travel of the bus was within his own personal knowledge (see Stephenson v New 

York City Tr. Auth., 226 AD3d 546 [1st Dept 2024]; Ahmad v Behal, 221 AD3d 558, 559 

[1st Dept 2023]). The mere hope that additional discovery may lead to sufficient 

evidence to defeat a summary judgment motion is insufficient to deny such a motion" 

(Singh v New York City Haus. Auth"", 177 AD3d 475,476 [1 st Dept 2019]). 

Plaintiff's and Car Defendants' arguments that an issue of fact arises as to 

whether the bus operator, Tapia, was partly at fault for not avoiding the accident are 

unpersuasive. 

"'A driver has a duty not to merge into a lane of moving traffic until it is 

safe to do so,' and 'a driver of a vehicle with the right-of-way is entitled to 

anticipate that the driver in the lane next to him or her will obey the traffic 

laws requiring them to yield to a driver with the right-of-way"' 

(Salama v Piccirillo, 223 AD3d 692, 693 [2d Dept 2024] [citation omitted]). "[T]he driver 

traveling with the right-of-way may be found to have contributed to the accident if they 

do not use reasonable care to avoid the accident" ( Caparitia v Johnson, 216 AD3d 529, 

529 [1st Dept 2023]). However, the driver with the right of way" is not comparatively at 

fault if they have only seconds to react to a vehicle that has failed to yield" (id.; accord 

Salama, 223 AD3d at 693). Here, defendant Tapia only had two second to react after 

Isaiah Adam's vehicle veered into Tapia's lane of travel, before Adams's vehicle 

stopped. 

Isaiah Adams's uncorroborated assertion that the bus was speeding is 

insufficient to refute the bus video, which indicated that the speed of the bus was within 

the speed limit at all times (see Min Zhong v Matranga, 208 AD3d 439, 442 [1st Dept 

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2022], affd 39 NY3d 1053 [2023]["there is only one version of the accident: the one 

shown in the video"]; Gaffney v New York City Tr. Auth., 210 AD3d 426,426 [1 st Dept 

2022]; Santana, 170 AD3d at 552 [plaintiff's claim that a triable issue of fact arose as to 

whether the offending vehicle had tried to enter the bus's lane at least once before the 

accident was refuted by the surveillance video]). 

On the issue of whether Isaiah Adams was faced with an emergency, he avers 

as follows: 

"5. I was driving at a rate of speed of approximately (15) to twenty (20) 

mph in the left lane behind an unknown vehicle. The unknown vehicle 

stopped suddenly and abruptly and without warning in front of my vehicle. 

6. The unknown vehicle that slammed on his brakes was less than a few 

feet in front of me. 

7 With practically no time to react to avoid hitting the unknown vehicle that 

stopped suddenly in front of me, I looked to my right and saw no vehicle 

next to me or approaching my vehicle and determined I can safely enter 

the right lane 

(Car Defendants' Exhibit A in opposition [NYSCEF Doc. No. 40]). 

However, as the Transit Defendants point out, whether the emergency doctrine 

would apply to defendant Isaiah Adams would neither establish that Tapia had operated 

the bus negligently, nor raise a triable issue of fact as to Tapia's negligence. Assuming 

for the sake of argument, that Isaiah Adams were faced with an emergency situation, 

then it would follow that Tapia would therefore also have been faced with an emergency 

situation created by the actions of Isaiah Adams. 

In any event, the Car Defendants failed to establish that the emergency doctrine 

applies to Isaiah Adams. 

First, Isaiah Adams's claim that he was traveling at 15-20 mph was contradicted 

by the video footage. The video footage established that the bus was travelling 

between 23-24 mph, and the video footage shows that Adams's vehicle overtakes the 

bus at 11: 17:54 a.m. It is reasonable to infer from the fact that Adams's vehicle 

overtakes the bus that Adams's vehicle is therefore traveling faster than the bus. 

Second, the video footage contradicts Adams's statement that an unknown 

vehicle in front of his vehicle "slammed on his brakes," i.e., stopped suddenly and 

abruptly. The video footage reveals that the brake lights of the unknown vehicle appear 

for less than a second at 11 :17:55 a.m., but that vehicle does not stop and continues to 

travel forward. 

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Lastly, "the emergency doctrine is typically not available to the rear driver in a 

rear-end collision, who is responsible for maintaining a safe distance" (Vanderha/1 v 

MTA Bus Co., 160 AD3d 542, 542-43 [1st Dept 2018]), because the driver's own 

conduct in failing to maintain a safe distance "caused or contributed to the emergency 

situation" (id.). As the Transit Defendants point out, Isaiah Adams stated in his affidavit 

the unknown vehicle in front of him allegedly braked "less than a few feet in front of me" 

(Isaiah Adams aff ,i 6). This rationale is therefore similarly applicable in this case, where 

the driver who followed too closely chose to swerve into the path of another vehicle 

instead of rear-ending the vehicle that allegedly suddenly stopped or slowed. 

In sum, plaintiff and the Car Defendants have failed to raise a triable issue of fact 

as to the applicability of the emergency doctrine as to defendant Tapia's operation of 

the bus. Therefore, the Transit Defendants' motion for summary judgment dismissing 

the complaint as against them is granted. 

Because the Transit Defendants can no longer be held liable to plaintiff, the 

cross claims of the Car Defendants against the Transit Defendants are also dismissed 

(see e.g. Bendel v Ramsey Winch Co., 145 AD3d 500, 501 [1st Dept 2016] [in view of 

the dismissal of the complaint in its entirety as against a defendant, the cross claims 

against that defendant are also dismissed]; see Phillips v Trammel Constr., 101 AD3d 

1097, 1098 [2d Dept 2012] [cross claims which were predicated on complaint must be 

dismissed when complaint was dismissed]). Similarly, the cross claims of the Transit 

Defendants against the Car Defendants are similarly dismissed as academic (Rogers v 

Rockefeller Group Intl .. , Inc., 38 AD3d 747, 750 [2d Dept 2007]). 

CONCLUSION 

Upon the foregoing documents, it is hereby ORDERED that defendants MTA Bus 

Company, Manhattan and Bronx Surface Transit Operating Authority, Metropolitan 

Transportation Authority, New York City Transit Authority and Desiree Tapia's motion 

for summary judgment dismissing plaintiff's complaint and any cross-claims against 

them (Seq. No. 001) is GRANTED, and the complaint is severed and dismissed as 

against defendants MTA Bus Company, Manhattan and Bronx Surface Transit 

Operating Authority, Metropolitan Transportation Authority, New York City Transit 

Authority and Desiree Tapia, and all cross claims by and against defendants MTA Bus 

Company, Manhattan and Bronx Surface Transit Operating Authority, Metropolitan 

Transportation Authority, New York City Transit Authority and Desiree Tapia are 

dismissed; and it is further 

ORDERED that the Clerk is directed to enter judgment in favor of defendants 

MTA Bus Company, Manhattan and Bronx Surface Transit Operating Authority, 

Metropolitan Transportation Authority, New York City Transit Authority and Desiree 

Tapia accordingly; and it is further 

ORDERED that the remainder of this action shall continue; and it is further 

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ORDERED that this action is respectfully referred to the General Clerk for 

reassignment out of the Transit Part to the Motor Vehicle Part; and it is further 

ORDERED that counsel for defendants MTA Bus Company, Manhattan and 

Bronx Surface Transit Operating Authority, Metropolitan Transportation Authority, New 

York City Transit Authority and Desiree Tapia is directed to serve the Clerk of the 

General Clerk's office; and it is further 

ORDERED that service of this order upon the Clerk of the General Clerk's Office 

shall be made in accordance with the procedures set forth in Section J of the Protocol 

on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible 

at the "E-Filing" page on the court's website at 

https://www.nycourts.gov/LegacyPDFS/courts/1 jd/supctmanh/Efil-protocol.pdf). 

Any future conferences in Part 21 are canceled. 

7/2/2024 

DATE 

CHECK ONE: 

APPLICATION: 

CHECK IF APPROPRIATE: 

CASE DISPOSED 

GRANTED □ DENIED 

SETTLE ORDER 

INCLUDES TRANSFER/REASSIGN 

150946/2023 PLESS, KARALYN vs. TAPIA, DESIREE ET AL 

Motion No. 001 

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RICHARD TSAI, J.S.C. 

NON-FINAL DISPOSITION 

GRANTED IN PART 

SUBMIT ORDER 

FIDUCIARY APPOINTMENT 

□ OTHER 

□ REFERENCE 

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