Karoon v. New York City Transit Authority
| Decision Date | 01 July 1997 |
| Citation | 659 N.Y.S.2d 27,241 A.D.2d 323 |
| Parties | Kayvan KAROON, Plaintiff-Respondent, v. NEW YORK CITY TRANSIT AUTHORITY, et al., Defendants-Appellants. |
| Court | New York Supreme Court — Appellate Division |
James M. Lane, for Plaintiff-Respondent.
Lawrence Heisler, for Defendants-Appellants.
Before SULLIVAN, J.P., and ELLERIN, NARDELLI, TOM and MAZZARELLI, JJ.
Order, Supreme Court, New York County (Robert Lippmann, J.), entered on or about September 5, 1996, which granted plaintiff's motion for additional discovery and denied defendants' cross-motion for summary judgment dismissing plaintiff's second and third causes of action, unanimously reversed, on the law, without costs, the motion denied and the cross-motion granted.
On September 1, 1994 at about 12:30 a.m., plaintiff Kayvan Karoon, a 29-year-old stockbroker, was riding his Kawasaki motorcycle at an excessive rate of speed westbound on 96th Street in Manhattan. Some distance ahead of him, Gilbert Cruz was driving a Transit Authority bus and was headed eastbound, intending to make a left turn onto Third Avenue.
As Cruz was completing his left turn, Karoon and his motorcycle slammed into the right wheel well of the bus. Transit investigators determined, based on the length of the skid marks left by Karoon's braking motorcycle, that Karoon first applied his brakes when the bus was as much as 320 feet away. The speedometer on Karoon's wrecked motorcycle was frozen at 65 m.p.h.
As a result of the collision, Karoon sustained serious injuries for which he now seeks recovery pursuant to three causes of action. In his first cause of action, not at issue on this appeal, he asserts that Cruz was employed by the defendant Manhattan and Bronx Surface Transit Authority [the "Authority"], that he operated the bus with his employer's consent and permission and that he negligently caused the accident.
Plaintiff's second and third causes of action allege that the Authority negligently hired, retained and trained Cruz and negligently entrusted him with a dangerous instrumentality. These claims are based on the findings of an Authority safety hearing at which an arbitrator found that "there were reasonable steps [Cruz] could have taken that could have avoided this accident". Specifically, the arbitrator found that Cruz "failed to observe oncoming traffic and should not have proceeded unless he was sure he could complete his turn without an accident". The accident was deemed "preventable" and a disciplinary suspension was imposed, to run concurrently with another accident suspension. The arbitrator's decision indicated that Cruz had been charged with eight preventable accidents, of which four were finalized as preventable.
Based on this finding, plaintiff moved for discovery of the records of Cruz's earlier accidents. Defendants, who conceded that Cruz was acting within the scope of his employment at the time of the accident, opposed such discovery and cross-moved for summary judgment dismissing the second and third causes of action.
The IAS court granted plaintiff's motion for additional inspection and denied defendants' cross-motion for partial summary judgment.
We find that defendants are entitled to summary judgment...
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