Frometa v. Mar-Can Transp. Co.

72 Misc.3d 316

148 N.Y.S.3d 613

Juan B. FROMETA as Administrator for the Estate of Carmen Altagracia Puello, deceased, and Juan B. Frometa, individually, Plaintiffs,

v.MAR-CAN TRANSPORTATION COMPANY, INC., and Aquiles R. Sanchez, Defendants.

21476/2018E

Supreme Court, Bronx County, New York.

Decided on April 8, 2021

Plaintiff, Yuriy Prakhin office@prekhinlaw.com, 718-946-5099, 1883 86th St Floor 2, Brooklyn, NY 11214

Defendants Mar Can - Clarissa Palmer, clarissa.palmer@lewisbrisbois.com, 212-863-9521, 77 Water street, 2100, New York, 10005

Veronica G. Hummel, J.

In accordance with CPLR 2219(a), the decision herein is made upon consideration of all papers filed in NYSCEF as submitted by the parties regarding: the motion of plaintiffs JUAN B. FROMETA as Administrator for the Estate of CARMEN ALTAGRACIA PUELLO, deceased, and JUAN B. FROMETA, individually (jointly "the Administrator") [Mot. Seq. 2], made pursuant to CPLR 3025, for an order: permitting the filing of (or deem filed) and serving of the proposed Supplemental Summons and Amended Verified Complaint ("the Proposed Amended Complaint") to include proposed plaintiffs "Juan B. Frometa as Father and Natural Guardian of J.F. an Infant, N.F. an Infant, and Connie Frometa" ("the Proposed Plaintiffs") as additional plaintiffs in this action and to allege claims on behalf of the Proposed Plaintiffs against current defendants MAR-CAN TRANSPORTATION COMPANY, INC., and AQUILES R. SANCHEZ ("the Bus Company") and against proposed new additional defendants New York City Board of Education, the City of New York, and New York City Department of Education Office of Pupil Transportation ("the Proposed City Defendants"), and to add claims on behalf of the Administrator as against the Proposed City Defendants; granting the Administrator an order permitting the Administrator and the Proposed Plaintiffs leave to serve a proposed amended notice of claim, nunc pro tunc , or in the alternative, granting the Administrator and the Proposed Plaintiffs leave to renew this portion of the motion upon appearance by the Proposed City Defendants; and the motion of the Administrator [Mot. Seq. 3], made pursuant to CPLR 3212, for an order granting the Administrator partial summary judgment as to liability and dismissing the affirmative defense of comparable negligence as against the Bus Company.

According to the Original Complaint, on October 14, 2016, at approximately 12:25p.m., defendant Sanchez ("the defendant driver") was operating a school bus in the course of his employment with defendant Mar-Can Transportation Company, Inc. ("the vehicle owner") when he struck the decedent Carmen Altagracia Puello ("the decedent") ("the Accident"). The vehicle owner is a private school bus company with a contract to transport students for the City of New York, and it is alleged that the City of New York, in some form, is listed as an additional insured on the vehicle owner's policy.

Juan Frometa was married to the decedent and the couple has three children: J.F. an Infant, and N.F. an Infant ("the Infant Children"), and Connie Frometa ("the Adult Child").

At the time of the Accident, the decedent was walking at or near the intersection of West Fordham Road and Sedgwick Avenue, Bronx County. The decedent was in the process of crossing the intersection carrying apples when she was struck and killed by the Bus Company's vehicle. The defendant driver admitted that he was in the center lane of three lanes on West Fordham Road and attempted to make an illegal right-hand turn onto Sedgwick Avenue heading southbound. As he made his turn, he saw "apples" flying into his windshield and stopped. Upon stopping, he realized that he had struck and run over the decedent. He did not see the decedent prior to stopping the bus.

The Administrator submits a video that shows the turn of the bus as described¹ . The video reveals that there was nothing blocking the defendant driver's view of the road or the turn, and that the decedent had the right of way. Based on where the bus and the car behind it stopped after the impact, and where the bystanders ran to help the decedent, the video shows that the decedent landed near the curb a few feet from the edge of the cross-walk. It is undisputed that the decedent had the walk sign, was hit by the bus, was thrown forward, and the vehicle then ran over her body. The decedent was conscious after impact and was transported to the hospital, where she died.

Approximately two months after the Accident, on December 13, 2016, the decedent's husband, Frometa, filed a notice of claim, naming himself as "Proposed Administrator" of the decedent's estate, via an attorney ("the Original Notice of Claim"). The Original Notice of Claim names the City of New York and the Department of Transportation only and alleges that the relevant city entities negligently designed, maintained, and remediated the dangerous intersection where the Accident occurred. There is no mention of any theories of liability based on a contractual relationship between the City of New York, the New York City Board of Education, or the Department of Transportation and the Bus Company.

On May 9, 2017, Frometa appeared for a hearing against the two noticed city agencies pursuant to GML 50-h ("the 2017 50-h Hearing"). During the 2017 Hearing, he testified that there were witnesses to the Accident in the neighborhood and his lawyer acknowledged that Frometa had a list of witnesses with their telephone numbers ("the Witness List"). No lawsuit was commenced against the City or its agency as a result of this hearing before the statute of limitations for a claim against the City entities expired.

The defendant driver was criminally charged in Bronx Criminal Court based on the Accident. While the papers submitted by the parties are inconsistent as to the initial criminal charges, defendants admit in the affirmation in opposition that the defendant driver:

"was arrested and charged in the Bronx Criminal Court for violating Vehicle and Traffic Law (VTL) § 1160(a) as well as AC 19-190. [The defendant driver] did plead guilty to ‘Failure to Yield’. Upon information and belief, he ultimately pled guilty in the Bronx County Criminal Court to a vehicle infraction under VTL § 1146, "Right of Way," in satisfaction of all criminal charges. He was sentenced to a one-year conditional discharge and ordered to pay a monetary fine and complete a driver improvement class". [NYSCEF No. 78].

Based on the criminal information filed on February 7, 2021, the defendant driver was also charged with AC 19-190[a] (right of way), AC 19-190[b](right of way), and VTL 1146 [a] (drivers to exercise due care).

Frometa was issued limited Letters of Administration and appointed Administer of the decedent's estate on December 19, 2017 ("the Administrator"). The anticipated distributes of the decedent's estate are Frometa, the Infant Children, and the Adult Child.

A hearing before Administrative Law Judge Patrick J. Carroll took place on January 31, 2018, pursuant to section 510(3) of the Vehicle and Traffic Law to investigate the fatal accident. The ALJ found that:

"Based upon the testimony of [the defendant driver] and the narrative in the Police Report, I concur with the findings of the Bronx Criminal Court in that [the defendant driver] failed to use due care at the time of the accident. I further find that [the defendant driver] made an improper turn in violation of VTL § 1160. [The defendant driver] readily admits that he took the right turn from the center or second lane, it is an improper turn. If [he] had been in the right lane when taking the right turn it is possible that he could have seen the pedestrian and avoided this unfortunate occurrence.

DISPOSITION: Fatal Accident: No additional penalties are imposed for failure to use due care as he was already penalized in Bronx Criminal Court. For [the defendant driver's] improper turn in violation of VTL § 1160, [his] license and driving privileges are suspended for an additional 90 days, to run consecutive to his current suspension." [NYSCEF No. 27].

Hence, the Administrative Judge found defendant driver guilty of a violation of VTL 1160.

The Administrator, Frometa, commenced this litigation on February 2, 2018, against the Bus Company. The original complaint contains two causes of action: negligence with pain and suffering (survivorship) and wrongful death. In the first, the Administrator alleges that the decedent sustained a serious injury and economic loss greater than basic loss as defined by the Insurance Law. As damages, the Administrator alleges that:

"That by reason of the aforesaid occurrence, the decedent sustained severe injuries to the head, body and limbs; severe shock to the nervous system, certain internal injuries, and was caused to suffer severe pain and mental anguish, fear of impending death, all of which said injuries ultimately resulted in her death, and she was incapacitated from her usual duties and/or vocation and sustained loss of life, all to her damage in an amount to be determined at the time of the trial of this action".

As for damages in the second cause of action based on wrongful death, the Administrator alleges that:

"the deceased left surviving as next of kin and heirs, including her [children] That by virtue of the wrongful death of the said decedent said distributes were and are deprived of the love, support, services, maintenance, guidance, society and comfort of the decedent, and of potential inheritance That in connection with the injuries sustained by the decedent and resulting death, plaintiff necessarily has incurred and become obligated to pay funeral and other expenses in connection with the death and will incur additional expenses in connection with the settlement of the estate of the decedent in various and diverse amounts, all to the damage of this plaintiff and the distributes of said decedent, all to his/her damage in an amount to be determined at the time of the trial of

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