Panarello v. Town of Huntington Hart Bus Co.

• Docket Number: Index 611959-2016
• Decision Date: 12 July 2021
• Citation: 2021 NY Slip Op 33125 (U)
• Parties: JEFFREY PANARELLO, Plaintiff, v. TOWN OF HUNTINGTON HART BUS COMPANY, HUNTINGTON AREA RAPID TRANSIT, TOWN OF HUNTINGTON AND COUNTY OF SUFFOLK AND "JOHN DOE" TRUE NAME BEING UNKNOWN, PERSON INTENDED BEING THE OPERATOR OF THE BUS ON MAY 11, 2015 AT APPROXIMATELY 1:30 PM ON LARKFIELD ROAD AT THE INTERSECTION WITH PULASKI ROAD, EAST NORTHPORT, NY, Defendants.
• Court: New York Supreme Court

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2021 NY Slip Op 33125(U)

JEFFREY PANARELLO, Plaintiff, v. TOWN OF HUNTINGTON HART BUS COMPANY, HUNTINGTON AREA RAPID TRANSIT, TOWN OF HUNTINGTON AND COUNTY OF SUFFOLK AND "JOHN DOE" TRUE NAME BEING UNKNOWN, PERSON INTENDED BEING THE OPERATOR OF THE BUS ON MAY 11, 2015 AT APPROXIMATELY 1:30 PM ON LARKFIELD ROAD AT THE INTERSECTION WITH PULASKI ROAD, EAST NORTHPORT, NY, Defendants.

Index No. 611959-2016

Supreme Court, Suffolk County

July 12, 2021

Unpublished Opinion

MOTION DATE: 12/04/20

SUBMITTED: 03/03/21

Jeffrey Panarello Plaintiff Pro Se

Gerber Ciano Kelly Brady LLP By: Robert W. Berbenich, Esq. Attorneys for Defendants

DAVID T. REILLY JUSTICE OF THE SUPREME COURT

Upon the reading and filing of the following papers in this matter: (1) Defendants' Notice of Motion dated November 6, 2020 and supporting papers; (2) Plaintiff's "Affirmation in Opposition" (not efiled or dated see NYSCEF Doc. No. 66); and (3) Defendants' Affirmation in Reply dated December 3, 2020 and supporting papers (and after hearing counsel in support and in opposition to the motion) it is, ORDERED that the motion by defendants, Town of Huntington Hart Bus Company, Huntington Area Rapid Transit, the Town of Huntington and "John Doe" (collectively the Huntington defendants), seeking an Order granting renewal of its prior motion dismissing the plaintiff's complaint pursuant to CPLR 3211 and 3212, which was denied by Order of the Court dated June 8, 2020, is granted, and upon renewal the motion is granted and the plaintiff's complaint is dismissed.

Plaintiff commenced this action seeking money damages for personal injuries sustained on May 11, 2015 when, as a passenger on a Town of Huntington Hart Bus, he was allegedly caused to fall from his seat and suffer personal injuries. In his complaint and as amplified by his testimony during a deposition held pursuant to Public Authorities Law §1276, plaintiff maintains that he was seated behind the bus driver having a conversation with another passenger when the incident occurred. Plaintiff only recalls being awoken by paramedics as they were attempting to remove him from the floor of the bus and into a waiting ambulance.

By way of procedural history, on October 10, 2017 the parties appeared in Court for the purpose of completing a Preliminary Conference Order. Within that Order the parties scheduled plaintiff's deposition for January 4, 2018. According to the defendants, plaintiff adjourned the date of his deposition several times and it was finally rescheduled for April 27, 2019. Plaintiff again failed to appear, indicating that he was ill. The deposition was rescheduled for June 5 2019. On that date defendants maintain that plaintiff failed to appear in a condition fit to testify. Stated otherwise, defendants maintain that plaintiff appeared, but was unable to answer simple questions after consuming three types of pain medication several hours prior to the deposition. The Court directed the parties to appear in Court on June 12, 2019 for a scheduled compliance conference.

On June 12, 2019 plaintiff appeared in Court with his attorney, however, it became evident to the attorneys and the Court that plaintiff was unable to proceed with the deposition due to his lack of capacity. The Court directed plaintiff to, within sixty (60) days of that date, secure a letter from his primary care physician and/or pain management doctor regarding plaintiff's medicinal regiment with an indication as to when the plaintiff might be expected to proceed with the deposition. The matter was adjourned to August 14, 2018. It is sufficient to state that the Court never received such communication from the plaintiff. At a subsequent compliance conference it is the Court's recollection that it suggested that counsel for the plaintiff aid in the commencement of a Mental Hygiene Law Article 81 proceeding before the Guardianship Part of the Court to determine if a guardian should be appointed for plaintiff. At around the same time plaintiff's counsel submitted a motion to be relieved as counsel in this action.

On November 12, 2019 plaintiff's motion to discontinue the guardianship proceeding was granted (Horowitz, J.). In light of that determination this Court indicated to the attorneys here that the motion to withdraw as counsel and the defendants' motion to dismiss would proceed to submission. In addition, the Court attempted to engage the parties in settlement negotiations, however, those discussions proved fruitless.

On June 8, 2020 the Court denied the Huntington defendants' motion to dismiss the plaintiff's complaint pursuant to CPLR 3211 and 3212 stating,

To the extent that defendants' seek an Order granting them summary judgment, a party moving for such relief must make a prima facie showing of entitlement to judgment as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316 [1985]). "[A] party does not carry its burden in moving for summary judgment by pointing to gaps in its opponent's proof, but must affirmatively demonstrate the merits of its claim or defense" (George Larkin Trucking Co. v Lisbon Tire Mart, 185 A.D.2d 614, 615, 585 N.Y.S.2d 894 [4th Dept 1992]). If the moving party meets this burden, the burden then shifts to the opposing party, who must demonstrate evidence of the existence of a material issue of fact (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 [1986]; Zuckerman v City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 [1980]). The failure of the moving party to make this prima facie showing requires denial of the motion (Winegrad v New York Univ. Med. Ctr., supra). Since the court's function on such a motion is to determine whether issues of fact exist, not to resolve issues of fact or to determine matters of credibility, the facts alleged by the opposing party and all inferences that may be drawn are to be accepted as true (see Roth v Barreto, 289 A.D.2d 557, 735 N.Y.S.2d 197 [2d Dept 2001]; O'Neill v Town of Fishkill, 134 A.D.2d 487, 521 N.Y.S.2d 272 [2d Dept 1987]).

In support of their application the defendants submit, among other things, a copy of the plaintiff's pre-claim hearing stenographic minutes and an affidavit of the bus driver, Mario Corvera. According to that affidavit, Mr. Corvera states that he was operating the bus northbound on Larkfield Road at the time of the incident when a vehicle cut in front of him. He avers that he depressed the brakes with moderate pressure to avoid an accident. He states that the bus did not actually stop as he was able to slow the bus in a non-violent manner. Mr. Corvera further maintains that the bus was in good working order, was equipped with seat belts and had no mechanical issues.

The Court subsequently denied the application stating that defendant had not sufficiently established the "emergency doctrine" such that the motion to dismiss should be denied. However, given the well-documented issues regarding the deposition of the plaintiff, outlined in this Court's prior decisions, the Huntington defendants now move for renewal based on the fact that plaintiff's deposition has now been completed.

A motion for leave to renew must be based upon new facts that were unavailable at the time...