### 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 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. 63 INDEX NO. 150946/2023 RECEIVED NYSCEF: 07/03/2024 

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

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KARALYN PLESS, Plaintiff,

- V
- DESIREE TAPIA, NEWYORK CITYTRANSIT AUTHORITY, MANHATTAN AND BRONX SURFACE TRANSIT OPERATING AUTHORITY, METROPOLITAN TRANSPORTATION AUTHORITY, ISAIAH J. ADAMS and ANITA M. ADAMS, Defendants.

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INDEX NO. 150946/2023 MOTION DATE 09/27/2023 MOTION SEQ. NO. 001

DECISION + ORDER ON MOTION

Thefollowing 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 motorvehicle collision between a bus and anothervehicle which allegedly occurred on April 28, 2022, on LenoxAvenue, between 120th Street and 119th Street in Manhattan. The bus was allegedlyoperated 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 CityTransitAuthority (collectively, Transit Defendants). The othervehicle was allegedly owned by defendantAnita Adams and operated by defendant Isaiah Adams (Car Defendants). Plaintiff Karlyn Pless was a bus passenger. The Transit Defendants now move for summaryjudgment dismissing plaintiff's complaint and dismissing the Car Defendants' cross-claims againstthem, based on the emergencydoctrine. Plaintiffand 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 October2021 (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 LenoxAvenue between 120th Street and 119th Street" 

### (id. 

### ,i 2). According to Tapia, LenoxAvenue is "a two-way streetwith 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 departfrom the right lane at anytime immediately before the accident orduring the accident" (id. 

### ,i 3). According to Tapia, as shewas driving south bound "in the right-hand lane, a white BMWthatwas in the left-hand lane suddenly cut in front ofthe bus, from leftto right, and thewhite BMWstruckthe leftfront ofthe bus" (id. 

### ,i 4). Tapia states that the "speed ofthe bus was within the speed limit of25 MPH during the entire occurrence" (id. 

### ,i 4). In an unsworn accident report dated April 28, 2022, defendantTapia wrote, "I was going south bound on LenoxAvenue and 119th on my right hand side when a white BMW (ZWF.84G) cut in front ofme hitting thefront side ofthe bus" (Transit Defendants' Exhibit H [NYSECF Doc. No 35] Accident Reports at 1-2). DISCUSSION "On a motion for summaryjudgment, the moving party must make a prima facie showing ofentitlement tojudgment as a matter oflaw, tendering sufficient evidenceto demonstrate the absence ofany material issues of fact. Ifthe moving party produces the required evidence, the burden shifts to the nonmoving partyto establish the existence ofmaterial issues offact which require a trial 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]). In support oftheir motion, the Transit Defendants arguethat 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, butthe video footage was not playable. On 5/22/24, Transit Defendants provided the court and the opposing parties with a linkto "Kiteworks (the Transit Defendants' virtual file sharing program) to download the video footage. The courtwas able to download and view afile named: "220428-5821-1120-00000.NH16.avs," which is the identical name ofthe file referenced in the affidavits ofthose 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 ofthe file ofthe 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 forthe parties' counsel. No party raised any objections with respectto this downloaded footage.

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The emergencydoctrine "recognizes that when an actor is faced with a sudden and unexpected circumstance which leaves little or no time forthought, deliberation or consideration, or causes the actorto be reasonably so disturbed that the actor must make a speedy decision withoutweighing alternative courses ofconduct, the actor may not be negligent ifthe actions taken are reasonable and prudent in the emergency context, provided the actor has not created the emergency" (Caristo vSanzone, 96 NY2d 172, 174 [2001] [internal citations and quotation marks omitted]). Video evidence can be relied upon to establish the emergency doctrine (see Rodriguez vNew 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 ofthe 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 aviewofthe rear entrance ofthe bus (Camera Analog 6), avehicle is seen travelling alongside the bus in the left lane, going fasterthan 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 fasterthan the bus. Meanwhile, the bus is traveling at 20 mph. From the forward camera view ofthe bus (Forward camera), the right front tire ofthe same vehicle that was traveling alongside the bus at 11 :17:52 a.m. is nowseen coming into the frame ofview in the left lane. From the forward camera view ofthe bus, the same vehicle that was traveling alongside the bus at 11:17:52 a.m. is now seen entirelywithin the frame and traveling in the left lane. The rear brake lights ofthe vehicle appearfor 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 "LenoxAvenue".

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11:17:56AM

11 :17:56 AM

11:17:57AM

11:17:58AM

11 :17:59 AM

11:18:01 AM

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From the forward camera view, the rear brake lights ofthe vehicle in the left lane vehicle are nowoff, 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 ofbus. 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. Atthis 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 ofthe 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. Atthis moment, the speed ofthe 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 summaryjudgment as a matterof law, based on the emergency doctrine. The bus is traveling in its own lane underthe speed limit of25 mph (34 RCNY §4-06). The Car Defendants' vehicle veered into the path ofthe 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 onlytwo seconds passed between the time that the Car Defendants' vehicle cross into the lane oftravel ofthe bus and the stopping ofthe bus, the Transit Defendants met their prima facie burden that the bus operator's actions in stopping to avoid striking the Car Defendants' vehicle was reasonable (see Febres vMetropolitan Transp. Auth., 220 AD3d 462, 462 [1st Dept 2023]; Santana vMetropolitan Transp. Co., 170 AD3d 551 [2019]; Orsos vHudson 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 ofspeed. At no time did the codefendant sound her horn, try to move to the left, apply her brakes orslow down to

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avoid the collision" (Car Defendants' ExhibitA in opposition, Adams Affidavit

# ,m 10-11 [NYSCEF Doc. No. 40]). The Car Defendants also argue that Isaiah Adams, the driver ofthe othervehicle, was faced with an emergencysituation himself (affirmation ofCar Defendants' counsel in opposition

# ,m 12-17 [NYSCEF Doc. No. 39]). Finally, they argue that summaryjudgment 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, plaintiffcontends, "Ifthe bus operator had been more cognizant of his surroundings, the white BMWs movement would not have been 'sudden' and unexpected as howthe co-defendants characterize it" (id. 

### ,i 20). According to plaintiff, "any prospective movement by the white BMWcould have been easily anticipated bythe co-defendant MTA bus had he kept a proper look out" (id. 

### ,i,i 26; see also id. 

### ,i,i 29-33). Lastly, plaintiffargues thatthe Transit Defendants' motion is premature (id. 

### ,i,i 23-24, 34-37). Contraryto plaintiff's and the Car defendants' arguments, the motion for summaryjudgment 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 oftravel ofthe bus was within his own personal knowledge (see Stephenson vNew York City Tr. Auth., 226 AD3d 546 [1st Dept 2024]; Ahmad vBehal, 221 AD3d 558, 559 [1st Dept 2023]). The mere hope that additional discovery may lead to sufficient evidence to defeat a summaryjudgment motion is insufficientto denysuch a motion" (Singh vNew York CityHaus. Auth"", 177 AD3d 475,476 [1 st Dept 2019]). Plaintiff's and Car Defendants' arguments that an issue offact arises as to whetherthe 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 ofmoving traffic until it is safe to do so,' and 'a driverofa vehicle with the right-of-way is entitled to anticipate thatthe driver in the lane next to him or herwill obeythe traffic laws requiring them to yield to a driverwith the right-of-way"' (Salama vPiccirillo, 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 ifthey do not use reasonable care to avoid the accident" (Caparitia vJohnson, 216 AD3d 529, 529 [1st Dept 2023]). However, the driverwith the right ofway" is not comparatively at fault ifthey have only seconds to react to a vehicle that hasfailed to yield" (id.; accord Salama, 223 AD3d at 693). Here, defendantTapia only had two second to react after Isaiah Adam's vehicle veered into Tapia's lane oftravel, before Adams's vehicle stopped. Isaiah Adams's uncorroborated assertion thatthe bus was speeding is insufficient to refute the bus video, which indicated that the speed ofthe bus was within the speed limit at all times (see Min Zhong vMatranga, 208 AD3d 439, 442 [1st Dept

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2022], affd39 NY3d 1053 [2023]["there is only one version ofthe accident: the one shown in the video"]; GaffneyvNew York City Tr. Auth., 210 AD3d 426,426 [1 st Dept 2022]; Santana, 170 AD3d at 552 [plaintiff's claim that a triable issue offact arose as to whetherthe offending vehicle had tried to enterthe bus's lane at least once before the accidentwas refuted by the surveillance video]). On the issue ofwhether Isaiah Adams was faced with an emergency, he avers as follows: "5. Iwas driving at a rate ofspeed ofapproximately (15) to twenty (20) mph in the left lane behind an unknown vehicle. The unknown vehicle stopped suddenly and abruptlyand withoutwarning in front ofmyvehicle. 6. The unknown vehicle that slammed on his brakes was less than afew feet in front ofme. 7 With practically no time to react to avoid hitting the unknown vehicle that stopped suddenly in front ofme, I looked to my right and saw no vehicle next to me or approaching myvehicle and determined Ican safely enter the right lane (Car Defendants' ExhibitA in opposition [NYSCEF Doc. No. 40]). However, as the Transit Defendants point out, whetherthe emergency doctrine would applyto defendant Isaiah Adams would neither establish that Tapia had operated the bus negligently, nor raise a triable issue offact as to Tapia's negligence. Assuming for the sake ofargument, that Isaiah Adamswere faced with an emergencysituation, 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 thatthe 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 inferfrom the fact thatAdams'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 ofthe 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 orcontributed to the emergency situation" (id.). As the Transit Defendants point out, Isaiah Adams stated in his affidavit the unknown vehicle in front ofhim allegedly braked "less than afew feet in front ofme" (Isaiah Adams aff

### ,i 6). This rationale is therefore similarly applicable in this case, where the driverwho followed too closely chose to swerve into the path ofanothervehicle instead of rear-ending the vehicle that allegedlysuddenlystopped orslowed. In sum, plaintiffand the Car Defendants have failed to raise atriable issue offact as to the applicability ofthe emergency doctrine as to defendantTapia's operation of the bus. Therefore, the Transit Defendants' motion for summaryjudgment dismissing the complaint as against them is granted. Because the Transit Defendants can no longer be held liable to plaintiff, the cross claims ofthe Car Defendants against the Transit Defendants are also dismissed (see e.g. Bendel vRamsey Winch Co., 145AD3d 500, 501 [1st Dept 2016] [in view of the dismissal ofthe 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 complaintwas dismissed]). Similarly, the cross claims ofthe Transit Defendants against the Car Defendants are similarly dismissed as academic (Rogers v RockefellerGroup 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, NewYork CityTransitAuthority and Desiree Tapia's motion for summaryjudgment 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, NewYork CityTransit 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, NewYork CityTransitAuthority and Desiree Tapia are dismissed; and it is further ORDERED thatthe Clerk is directed to enterjudgment in favor ofdefendants MTA Bus Company, Manhattan and Bronx Surface Transit Operating Authority, Metropolitan Transportation Authority, NewYork CityTransitAuthority and Desiree Tapia accordingly; and it is further ORDERED thatthe remainder ofthis action shall continue; and it is further

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ORDERED thatthis action is respectfully referred to the General Clerkfor reassignment out ofthe Transit Partto the MotorVehicle Part; and it is further ORDERED that counsel for defendants MTA Bus Company, Manhattan and Bronx SurfaceTransit Operating Authority, Metropolitan Transportation Authority, New York CityTransitAuthority and Desiree Tapia is directed to serve the Clerk ofthe General Clerk's office; and it is further ORDEREDthatservice ofthis order upon the Clerk ofthe General Clerk's Office shall be made in accordance with the procedures setforth in Section J ofthe Protocol on Courthouse andCountyClerkProcedures forElectronicallyFiled Cases (accessible atthe "E-Filing" page on the court'swebsite at https://www.nycourts.gov/LegacyPDFS/courts/1jd/supctmanh/Efil-protocol.pdf). Anyfuture conferences in Part21 are canceled.

7/2/2024

DATE CHECKONE:

APPLICATION: CHECK IF APPROPRIATE: CASE DISPOSED GRANTED**□** DENIED SETTLE ORDER INCLUDES TRANSFER/REASSIGN

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