Taylor v. Appleberry
| Docket Number | 534049 |
| Decision Date | 16 March 2023 |
| Citation | 214 A.D.3d 1142,185 N.Y.S.3d 829 |
| Parties | Sean TAYLOR, Plaintiff, v. Morgan N. APPLEBERRY, Appellant, and Tompkins Consolidated Area Transit, Inc., Respondent. (And An Interpleader Action) |
| Court | New York Supreme Court — Appellate Division |
Smith, Sovik, Kendrick & Sugnet, PC, Syracuse (Karen G. Felter of counsel), for appellant.
Rupp Baase Pfalzgraf Cunningham LLC, Rochester (Kevin J. Federation of counsel), for respondent.
Before: Garry, P.J., Clark, Aarons, Reynolds Fitzgerald and McShan, JJ.
Clark, J. Appeal from an order of the Supreme Court (Joseph A. McBride, J.), entered August 30, 2021 in Tompkins County, which granted a motion by defendant Tompkins Consolidated Area Transit, Inc. for summary judgment dismissing the complaint against it.
On January 29, 2019, a bus owned by defendant Tompkins Consolidated Area Transit, Inc. (hereinafter TCAT) and operated by a TCAT trainee bus driver (hereinafter the bus driver) traveled eastbound on West Green Street in the City of Ithaca, Tompkins County. As the bus entered the intersection of West Green Street and Meadow Street, a vehicle operated by defendant Morgan N. Appleberry – who was driving northbound on Meadow Street – struck the bus. The bus then crashed into a tree. As the bus driver was a trainee, a TCAT supervisor (hereinafter the trainer) was present to observe and train the bus driver. Plaintiff, a passenger on the bus, was injured during the accident, and he commenced the instant action against Appleberry and TCAT seeking to recover damages for his injuries. Thereafter, TCAT moved for summary judgment dismissing the complaint against it.1 As relevant to this appeal, plaintiff and Appleberry opposed TCAT's motion. Ultimately, Supreme Court granted TCAT's motion for summary judgment and dismissed the complaint against it.2 Appleberry appeals.3
Many of the material facts surrounding this accident are not in dispute. Specifically, Appleberry admitted that she ran a red light, and the facts are clear that the bus driver had a green light when she entered the intersection. However, Appleberry argues that Supreme Court erred in granting TCAT's motion for summary judgment because questions of fact remain as to whether the bus driver's actions or inactions were a proximate cause of plaintiff's injuries. Indeed, "more than one proximate cause of an accident may exist" ( Durr v. Capital Dist. Transp. Auth., 198 A.D.3d 1238, 1241, 156 N.Y.S.3d 505 [3d Dept. 2021] [internal quotation marks and citations omitted]; see Giannelis v. BorgWarner Morse TEC Inc., 167 A.D.3d 1185, 1187, 89 N.Y.S.3d 475 [3d Dept. 2018] ). Generally, "the driver of a vehicle with the right-of-way is entitled to anticipate that other vehicles will obey the traffic laws that require them to yield" ( Miglionico v. Leroy Holdings Co., Inc., 78 A.D.3d 1306, 1307, 909 N.Y.S.2d 829 [3d Dept. 2010] [internal quotation marks and citations omitted]). However, a driver with the right-of-way "may nevertheless be found to have contributed to the happening of the accident if he or she did not use reasonable care to avoid the accident" ( Valiando v. Catalfamo, 138 A.D.3d 1271, 1272, 29 N.Y.S.3d 685 [3d Dept. 2016] [internal quotation marks and citation omitted]; see Kreis v. Kiyonaga, 200 A.D.3d 1144, 1146, 159 N.Y.S.3d 539 [3d Dept. 2021] ).
( Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 503, 942 N.Y.S.2d 13, 965 N.E.2d 240 [2012] [internal quotation marks, brackets, emphasis and citations omitted]; accord Davis v. Zeh, 200 A.D.3d 1275, 1278, 160 N.Y.S.3d 144 [3d Dept. 2021] ; see CPLR 3212[b] ). "When considering a motion for summary judgment, courts must view the evidence in a light most favorable to the nonmoving party and accord that party the benefit of every reasonable inference from the record proof, without making any credibility determinations" ( Carpenter v. Nigro Cos., Inc., 203 A.D.3d 1419, 1420–1421, 165 N.Y.S.3d 618 [3d Dept. 2022] [internal quotation marks and citation omitted]; see Vega v. Restani Constr. Corp., 18 N.Y.3d at 503, 505, 942 N.Y.S.2d 13, 965 N.E.2d 240 ; Facteau v. Mediquest Corp., 162 A.D.3d 1386, 1388, 79 N.Y.S.3d 360 [3d Dept. 2018] ).
In support of its motion for summary judgment, TCAT submitted a video recording of the accident as well as the deposition transcripts of the bus driver, Appleberry and plaintiff. The video – recovered from three surveillance video cameras inside the bus and a fourth camera in front of the bus – shows the bus driver traveling eastbound on West Green Street and pulling over to the curb to drop off a passenger at a bus stop right before Meadow Street. The trainer told the bus driver to "try to gun it," and the bus driver accelerated the bus from its stopped position. As the bus approached the intersection, the bus driver leaned forward slightly and looked right toward Meadow Street. As the bus entered the intersection, the bus driver saw Appleberry's vehicle and yelled "whoa" as the bus was struck on the right side. The impact caused the bus to slide left into snowy terrain and, four seconds later, it hit a tree.
During her deposition, Appleberry admitted that she received a traffic infraction for running a red light (see Vehicle and Traffic Law § 1111[d][1] ) and that she pleaded guilty to it. Plaintiff testified that he did not see another vehicle crash into the bus. Rather, he explained that he felt the bus "jostled side to side" shortly after pulling away from the bus stop. Plaintiff said this caused him to look up, and he saw that the bus was headed directly into a tree.
The bus driver, who had previously been a school bus driver for four years, had completed the classroom portion of the training required by TCAT and began driving a TCAT bus on January 28, 2019. The next day – the day of the incident – while driving on West Green Street, she dropped a passenger off at a bus stop located a short distance before its intersection with Meadow Street. The bus driver explained that the distance between the bus stop and the intersection was less than a bus length but more than a car length. The bus driver testified that as she pulled out of the bus stop, she looked out for vehicles on Meadow Street, but her view further down Meadow Street was obstructed by some bushes. Regardless, she began to scan for vehicles as she proceeded through the green light traveling under the speed limit. The bus driver admitted that she was pressing the accelerator "to the floor" as she entered the intersection and she explained that hybrid buses, such as the one she was driving that day, required the accelerator to be pressed hard to get the bus moving.
Approximately six seconds after departing from the bus stop from a standstill, the bus entered the intersection with a green light and was struck by Appleberry's vehicle. "[A]lthough a driver with a right-of-way also has a duty to use reasonable care to avoid a collision, a driver with the right-of-way who has only seconds to react to a vehicle which has failed to yield is not comparatively at fault for failing to avoid the collision" ( Debra F. v. New Hope View Farm, 155 A.D.3d 1491, 1492, 66 N.Y.S.3d 51 [3d Dept. 2017] [internal quotation marks and citation omitted]). Accordingly, we find that TCAT met its burden of establishing that the bus driver's conduct was not a...
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Hurley v. Glens Falls Hosp.
...summary judgment, plaintiff's opposition papers need not be considered (see Vega v Restani Constr. Corp., 18 N.Y.3d at 503; Taylor v Appleberry, 214 A.D.3d at 1144; Davis Zeh, 200 A.D.3d at 1278). Therefore, having considered NYSCEF document Nos. 1 through 2, 9 through 21, 27 through 29 and......