Mallory v. The City of New York

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2022 NY Slip Op 32943(U)

TANYA MALLORY, Plaintiff, v. THE CITY OF NEW YORK, CONSOLIDATED EDISON COMPANY OF NEW YORK, INC..VERIZON NEW YORK, INC., ROBINSON S. KASSIEM, JACOB A. RIVERS, Defendants.

Index No. 452540/2015

Motion Seq. No. 005

Supreme Court, New York County

August 31, 2022

Unpublished Opinion

PRESENT: HON. JUDY H. KIM, Justice.

DECISION + ORDER ON MOTION

HON JUDY H. KIM, J.S.C.

The following e-filed documents, listed by NYSCEF document number (Motion 005) 101, 102, 103, 104, 105, 106, 107, 108, 109 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133 were read on this motion for SUMMARY JUDGMENT.

Upon the foregoing documents, the motion by defendant Verizon New York, Inc. ("Verizon") for an order granting it summary judgment dismissing the complaint and all cross claims asserted against it is denied.

This is an action for personal injuries allegedly sustained by the plaintiff on October 2, 2013, as a passenger in a motor vehicle owned by co-defendant Jacob A. Rivers and driven by co-defendant Kassiem Robinson that ran over a manhole improperly placed by the defendants the City of New York, Consolidated Edison Company of New York, Inc., and Verizon New York, Inc. (NYSCEF Doc. No. 1 [Compl. At K¶62-64]).

In motion sequence 003, plaintiff moved for an "[o]rder pursuant to CPLR §3212 granting summary judgment as to liability in favor of the plaintiff, Tanya Mallory, dismissing defendants' affirmative defenses of culpable conduct and for such other and further relief as this Court deems just and proper" (NYSCEF Doc. No. 53 [emphasis added]). In her motion papers, plaintiff argued that

[A] passenger of a vehicle involved in an accident with another vehicle is entitled to partial summary judgment on [the] issue of liability regardless of which driver is at fault as an innocent passenger could not possibly be found at fault under either driver's version of the accident. The right of an innocent passenger involved in a vehicle accident to summary judgment in a personal injury action is not in any way restricted by potential issues of comparative negligence as between the drivers of the vehicles. Further, an innocent passenger is entitled to dismissal of defendants' affirmative defense(s) of comparative fault. In the instant case, defendants were solely responsible for causing the accident. Plaintiffs was free from culpable conduct. No competing inferences could be drawn

The testimony of plaintiff clearly establishes that she was an innocent passenger in the vehicle driven by defendant Kassiem on East 86 Street at the location and the time of the accident which, as a result of defendants' negligence, caused her [to] suffer severe injury. Defendants cannot provide a non-negligent explanation for the collision that occurred, nor can defendants offer any theory of liability that might support a finding that plaintiff was in any way responsible for and/or contributed to the instant accident.

Based upon the [affidavit of the plaintiff, the pleadings, the case law and statutes cited herein, there is no viable defense that defendants could present. Thus, this Court should grant plaintiffs' motion for summary judgment on the issue of liability. Based on the foregoing, it is respectfully submitted that this Court issue an Order granting partial summary judgment in favor of plaintiff on the issue of liability, dismissing any and all of the affirmative defenses pled in defendants' Answer in regard to plaintiff s culpability and for such other and further relief as this Court deems proper.

(NYSCEF Doc. No. 54 [Lara Affirm. at ¶¶19-25] [emphasis added]).

In a decision and order dated August 19, 2020 (the "Prior Decision"), this Court (Hon Dakota D. Ramseur) granted plaintiffs motion, writing:

Plaintiff moves, pursuant to CPLR §3212, for partial summary judgment on liability, arguing that "Defendants cannot provide a non-negligent explanation for the collision that occurred, nor can [Defendants offer any theory of liability that might support a finding that plaintiff was in any way responsible for and/or contributed to the instant accident" (NYSCEF 54 ¶23). Every Defendant opposes with similar arguments: that summary judgment is premature because only Plaintiff has been deposed, and that an issue of fact exists with respect to Plaintiffs culpability as a passenger based on Plaintiffs deposition testimony that she made a "smart" comment which induced the driver to laugh just before the accident. For the reasons below, the Court grants the motion.

Here, Plaintiff testified at an EBT that she may have distracted the driver by saying "something smart ... we were laughing" just prior to the accident (NYSCEF 66 23:25-24:10) ...

Recently, however, the Court of Appeals departed from earlier precedent by holding that "[t]o be entitled to partial summary judgment a plaintiff does not bear the double burden of establishing a prima facie case of defendant's liability and the absence of his or her own comparative fault" (Rodriguez v City, 31 N.Y.3d 312, 324-325 [2018]). This is because, the majority reasoned, "comparative negligence is not a defense to the cause of action of negligence, because it is not a defense to any element... of plaintiff s prima facie cause of action for negligence, and ... is not a bar to plaintiffs recovery, but rather a diminishment of the amount of damages" (id at 320).

Pre-Rodriguez, Plaintiffs statement that she "in no way contributed to the occurrence of this accident," (NYSCEF 56 ]f6), juxtaposed against Defendants' citation to Plaintiffs "smart" remark, may have justified denial of summary judgment until discovery could be conducted to uncover facts "essential to justify opposition"; to determine, in other words, what role the "smart" remark had, if any, in causing the accident. Post-Rodriguez, however, outstanding discovery is not a barrier to partial summary judgment, particularly where the outstanding discovery would bear only on an issue that is irrelevant to Plaintiff s liability.

(NYSCEF Doc. No. 81 [August 19, 2020 Decision and Order] [internal citations omitted]).

Verizon now moves for summary judgment dismissing the complaint and all cross-claims against it. In support of its motion, Verizon submits the affidavit of Nai Zhang, an "Engineering Specialist-Network Engineering and Operations" attesting that:

I am responsible for Verizon facilities for the territory of Manhattan that is composed of the area north of East 64th Street, south of East 130th Street, west of the FDR and Harlem River Drives and cast of Fifth/Lennox Avenues. This territory includes the accident location: the intersection of East 86th Street and First Avenue, in the City, County and State of New York

I am familiar with the location of manholes owned by Verizon in the territory for which I am responsible, and have also consulted the records of Verizon regarding same.

Verizon does not, nor did it at the time of plaintiffs accident on October 2, 2013, own, install or maintain any manholes within the intersection of East 86th Street and First Avenue in the City, County and State of New York

(NYSCEF Doc. Nos. 116 [Zhang Aff.]).

Verizon also submits the affidavit of Daniel Tergesen, a Construction Manager Consultant for Empire City Subway Company (Limited) ("ECS"), in which he attests that:

I have reviewed the results of a records

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