DeJesus v. New York City Transit Authority

• Decision Date: 18 August 1997
• Citation: 661 N.Y.S.2d 952,173 Misc.2d 918
• Parties: , 1997 N.Y. Slip Op. 97,489 Danny DEJESUS et al., Plaintiffs, v. NEW YORK CITY TRANSIT AUTHORITY, et al., Defendants.
• Court: New York Supreme Court

Page 952

661 N.Y.S.2d 952

173 Misc.2d 918, 1997 N.Y. Slip Op. 97,489

Danny DEJESUS et al., Plaintiffs, v. NEW YORK CITY TRANSIT AUTHORITY, et al., Defendants.

Supreme Court, New York County.

Aug. 18, 1997.

Nicolini & Paradise, Mineola, for Evan R. Lazarou, defendant.

Capell & Vishnick, Lake Success, for plaintiffs.

Wallace D. Gossett, Brooklyn, for New York City Transit Authority, defendant.

Isserlis & Sullivan, Bethpage, for Mohammed M. Hossain, defendant.

LOUIS B. YORK, Judge.

In this summary judgment motion, defendant Evan R. Lazarou ("Lazarou") seeks to have plaintiff's complaint and all cross claims asserted against him dismissed. For the reasons set forth below, Lazarou's summary judgment motion is granted.

Background

Danny DeJesus was injured on July 11, 1992 while aiding New York City Transit Authority police officers in securing the arrest of defendant Mohammed M. Hossain ("Hossain"). The incident occurred when DeJesus stopped his vehicle at a red light at the intersection of Amsterdam Avenue and 86th Street. Anthony Adorno, a Transit Authority police officer ("Adorno"), was a passenger in DeJesus' vehicle. Christopher Castro, also a Transit Authority police officer ("Castro"), pulled up his vehicle and began conversing with DeJesus and Adorno. While they were talking, a taxi cab operated by Hossain and owned by Lazarou pulled up beside DeJesus' vehicle. Hossain looked over at DeJesus and shouted obscenities. DeJesus then asked Hossain what was his problem and told him to shut up. In response, Hossain pulled forward into the intersection, reversed the cab, crashed into DeJesus' vehicle and sped away.

DeJesus followed Hossain; and, at some point during the chase Adorno identified himself as a Transit Authority police officer. Hossain continued driving the cab down Central Park West towards 87th Street. DeJesus pulled the cab over to the side of the road. When DeJesus exited his vehicle and walked toward Hossain, Hossain struck DeJesus with the cab. Eyewitnesses state that Hossain drove the cab about approximately 10 to 20 feet while DeJesus was pinned under the vehicle and then left the cab. As a result of this incident, Danny DeJesus suffered and sustained serious injuries.

Castro pursued Hossain on foot, finally overtook him and placed him under arrest. On March 12, 1993, Hossain was tried and convicted of two counts of assault in the first degree, reckless endangerment in the first degree and leaving the scene of an accident.

On or about December 4, 1992, plaintiffs Danny DeJesus and Martha DeJesus commenced their legal action. ¹ This motion for summary judgment pertains to the third cause of action alleged by DeJesus against Hossain and Lazarou. DeJesus argues that Hossain negligently caused, allowed and permitted the vehicle to strike him and thereby cause him to suffer permanent and disabling injuries. Therefore, DeJesus asserts, Lazarou is vicariously liable for Hossain's negligence pursuant to Vehicle and Traffic Law section 388, which states that owner of a vehicle is liable for the negligence of one who uses or operates the vehicle with owner's express or implied permission.

Discussion

A. Timeliness under CPLR Section 3212(a)

Initially, this court must first determine whether Lazarou's summary judgment motion is timely pursuant to CPLR 3212(a). This provision "sets new parameters for the time in which parties may seek summary judgment." Tananbaum v. Huntington Hosp, N.Y.L.J. 6/2/97, p. 34 col. 3 (Sup.Ct.Suffolk County). Under the former CPLR 3212(a), a summary judgment motion could be made at any time in the action after issue was joined. The amended statute, effective January 1, 1997, requires that a motion for summary judgment "be made no later than one hundred twenty days ² after the filing of the note of issue, except with leave of court on good cause shown." CPLR 3212(a) (as amended by chapter 492 of the Laws of 1996).

Courts are divided on the issue of how to apply the amendment to cases in which the note of issue was filed prior to the statute's effective date. One Nassau County Supreme Court justice has applied the amended CPLR 3212(a) prospectively because, after reading the statute, she concluded that the legislature did not intend for the provision to have a retroactive application. See Carlstrand v. Kerwin, N.Y.L.J. 3/12/97, p. 31 col. 3 (Sup.Ct.Nassau County). Two other courts have reached the opposite conclusion. These courts held that Chapter 492 was a procedural statute which does not affect a substantive right of a party--and that, accordingly, it should be given retroactive effect. See Auger v. State of New York, 171 Misc.2d 866, 656 N.Y.S.2d 157 (1997); Citibank, N.A. v. Olson, N.Y.L.J 6/18/97, p. 32 col. 3 (Sup.Ct.Richmond County). In Tananbaum v. Huntington, N.Y.L.J. 6/2/97, p. 34 col. 3, the Supreme Court in Suffolk County held that the 120-day period began to run from the statute's effective date of January 1, 1997 in all actions in which the note issue was filed before January 1, 1997. Most recently, a Supreme Court justice in this county followed Tananbaum. See Moreno v. Pilevsky, N.Y.L.J. 7/29/97, p. 22 col. 1 (Sup.Ct.New York County) (stating Tananbaum best effectuates legislature's intent).

This court agrees with the approach adopted by the courts in Tananbaum and Moreno. Therefore, I hold that, for all summary judgment motions brought after January 1, 1997 in which the notes of issue were filed prior to this effective date, the 120-day period runs from January 1, 1997. A prospective application undermines the statute's direct purpose of eliminating motions made on the eve of trial. Moreno v. Pilevsky, N.Y.L.J. 7/29/97, p. 22 col. 1 (Sup.Ct.New York County). On the other hand, a retroactive application yields inequitable results as final outcomes are affected. The Tananbaum and Moreno applications eliminate the "long resented * * * practice of many lawyers seeking to delay trials by filing last minute motions for summary judgment" while still preventing the inequitable results of retroactively applying the statute. Moreno v. Pilevsky, N.Y.L.J. 7/29/97, p. 22 cols. 1, 2 (Sup.Ct.New York County). In addition, parties are not prejudiced "as [the statute] applies to all parties equally and allows the court to waive the requirements for good cause." Citibank, N.A. v. Olson, N.Y.L.J. 6/18/97, p. 32 cols. 3, 5 (Sup.Ct.Richmond County) (regarding retroactive application).

In this action, Dejesus filed the note of issue on November 16, 1995. He thus had 120 days from January 1, 1997 to file his summary judgment motion--until April 30, 1997. Lazarou filed the motion with this court on March 4, 1997, with a March 13, 1997 return date. Therefore, Lazarou's motion is timely under CPLR 3212(a) because the 120-day period from January 1, 1997 had not expired.

B. The Summary Judgment Motion

Dejesus's legal claim against Lazarou is based on Vehicle and Traffic Law section 388. Vehicle and Traffic Law section 388 imputes to the owner of a vehicle the negligence of one who uses or operates the vehicle with the owner's express or implied permission. The provision imposes liability upon an owner if:

1) [there is] death or injury to person or property; 2) the harm is the result of the operator's negligence; 3) the negligence arose from the use or operation of the vehicle; and, 4) the operator was using the vehicle with the owner's permission.

Levitt v. Peluso, 168 Misc.2d 239, 241, 638 N.Y.S.2d 878, 879 (Sup.Ct.Nassau County 1995).

Lazarou argues that he cannot be held liable under section 388 because Hossain's conduct was not negligent but rather intentional and criminal in nature. Lazarou relies on the separate criminal proceedings in which Hossain was tried and found guilty of two counts of assault in the first degree, reckless endangerment in the first degree and leaving the scene of an accident. According to Lazarou, these convictions have a res judicata effect on the issue of Hossain's behavior, and the claim against Lazarou should be dismissed. Particularly, Hossain's conviction of assault required a finding of intentional behavior towards DeJesus.

Lazarou incorrectly refers to res judicata; the applicable doctrine is collateral estoppel. Under this doctrine, a "criminal conviction, whether by plea or after trial, is conclusive proof of its underlying facts in a subsequent civil action and collaterally estops a party from relitigating an issue." Grayes v. DiStasio, 166 A.D.2d 261, 262-63, 560 N.Y.S.2d 636, 637 (1st Dept.1990). For a court to give collateral estoppel effect to a criminal conviction, the party seeking the benefit of collateral estoppel...