FindLaws Case and Opinions on the New York Supreme Court. (2023)

Supreme Court, Appellate Division, Third Department, New York.

Sean TAYLOR, plaintiff, v. Morgan N. APPLEBERRY, plaintiff, Tompkins Consolidated Area Transit, Inc., defendant. (And a perform action)


Resolved: March 16, 2023

Before: Garry, P.J., Clark, Aarons, Reynolds Fitzgerald and McShan, JJ. Smith, Sovik, Kendrick & Sugnet, PC, Syracuse (Karen G. Felter of Counsel), representing the petitioner. Rupp Baase Palatine Cunningham LLC, Rochester (Kevin J. Federation of Counsel), for Respondent.

memorandum and order

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Appealed an order of the Supreme Court (Joseph A. McBride, J.), entered on August 30, 2021 in Tompkins County, granting defendant Tompkins Consolidated Area Transit, Inc.'s motion for summary judgment to dismiss the lawsuit .

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 Bus Driver) traveled down West Green Street in the city of Ithaca, Tompkins County, heading east. As the bus came to a stop at the intersection of West Green and Meadow streets, a vehicle belonging to defendant Morgan N. Appleberry, who was traveling north on Meadow Street, collided with the bus. The bus then crashed into a tree. Since the bus driver was a trainee, a TCAT supervisor (referred to as instructor) was present to observe and train the bus driver. The plaintiff, a passenger on the bus, was injured during the accident and brought immediate action against Appleberry and TCAT to seek damages for his injuries. TCAT then sought summary judgment, dismissing the case against him.1To the extent relevant to this appeal, Plaintiff and Appleberry denied the motion for TCAT. Ultimately, the Supreme Court granted TCAT's motion for summary judgment and dismissed the lawsuit.2Chokeberry Appeals.3

Many of the essential facts surrounding this accident are indisputable. In particular, Appleberry admitted that he ran a red light, and the facts are clear that the bus driver had a green light when he stopped at the intersection. However, Appleberry argues that the 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 omissions were a direct cause of the plaintiff's injuries. Indeed, there may be "more than one proximate cause of an accident" (Durr v. Capital Dist. Transp.  Auth., 198 AD3d 1238, 1241 [3d Dept 2021] [internal quotes and citations omitted];   see Giannelis v BorgWarner Morse TEC Inc., 167 AD3d 1185, 1187 [Dept. 3, 2018]). In general, "the driver of a right-of-way vehicle is entitled to assume that other vehicles will obey traffic laws that require them to yield the right-of-way" (Miglonico v. Leroy Holdings Co., Inc., 78 AD3d 1306, 1307 [2010 3rd department] [internal quotation marks and citations omitted]). However, “a driver with the right-of-way may be found to have contributed to the accident if they failed to exercise reasonable care to avoid the accident” (Valiando v. Catalfamo, 138 AD3d 1271, 1272 [3rd Dept. 2016] [internal quotes and citation omitted]; see Circle v. Kiyonaga, 200 AD3d 1144, 1146 [Dept. 3, 2021]).

"Summary judgment is a severe remedy that can only be granted if the complaining party has presented sufficient evidence to establish the absence of material facts and only if the non-presenting party meets that burden and the non-presenting party does not establish the existence of material facts." material facts". material facts that require the filing of a complaint. Failure of the plaintiff to provide prima facie evidence of the right to summary judgment requires dismissal of the claim, regardless of whether the supporting documents are sufficient” (Vega v. Restani Constr.  Corp., 18 NY3d 499, 503 [2012 ] [internal quotation marks, brackets, emphasis, and citations omitted];  accord Davis v. Zeh, 200 AD3d 1275, 1278 [3d Dept 2021];  see CPLR 3212[b]). “In considering a motion for summary judgment, courts must consider the evidence from the point of view most favorable to the non-intervening party and allow that party the benefit of any reasonable inference from the evidence on the record, without making any determination of credibility” (Carpenter v. Nigro Cos., Inc., 203 AD3d 1419, 1420–1421 [3d Dept 2022] [internal quotes and citation omitted],  see Vega v. 162 AD3d 1386, 1388 [3d Dept. 2018]).

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In support of its motion for summary judgment, TCAT submitted video footage of the accident and the statement records of the bus driver, Appleberry, and the plaintiff. The video, captured by three surveillance cameras on the bus and a fourth camera in front of the bus, shows the bus driver traveling east on West Green Street and stopping at the curb to drop off a passenger at a bus stop just off Prado street. The coach told the bus driver to "try to shoot him", 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 directly down Meadow Street. As the bus stopped at the intersection, the bus driver saw Appleberry's vehicle and yelled "Wow" as the bus was struck from the right. As a result of the impact, the bus slid to the left on snow-covered ground and four seconds later crashed into a tree.

During his testimony, Appleberry admitted that he received a traffic ticket for running a red light (see Vehicle and Traffic Law § 1111[d][1]) and that he pleaded guilty. The plaintiff stated that he did not see any other vehicle collide with the bus. Rather, he explained that he felt the bus "run back and forth" shortly after leaving the bus stop. The plaintiff said this caused him to look up and see the bus headed straight for a tree.

The bus driver, who had previously been a school bus driver for four years, had completed the portion of the classroom training required by TCAT and began driving a TCAT bus on January 28, 2019. "The next day, the On the day of the incident, while driving on West Green Street, he dropped off a passenger at a bus stop just before the intersection with Meadow Street.The bus driver explained that the distance between the bus stop and the intersection was less than the length of a bus but greater than the length of a car. The bus driver testified that as she was leaving the bus stop, she looked for vehicles on Meadow Street, but her view further down Meadow Street was obstructed by some bushes. Of all Anyway, he began searching for vehicles when he ran the green light below the speed limit.The bus driver admitted to pressing the accelerator “all the way down” when he stopped at the intersection and she explained that hybrid buses, like the one she was driving that day, had to hit the accelerator hard to get the bus moving. .

Approximately six seconds after pulling out of the bus stop from a standstill, the bus stopped at the intersection with the green light and was struck by Appleberry's vehicle. "Although a driver with the right-of-way also has a duty to use reasonable care to avoid a collision, a driver with the right-of-way has only seconds to react to a vehicle that has not yielded the right-of-way, and is comparatively not at fault. for not avoiding the collision". have" (Debra F. v. New Hope View Farm, 155 AD3d 1491, 1492 [3d Dept 2017] [internal quotes and citation omitted]). Accordingly, we conclude that TCAT met its burden of proving that the behavior of the driver of the bus was not a direct cause of the first accident (see Rowe v. Harrison, 303 A.D.2d 863, 863–864 [3d Dept 2003]; see also Valiando v. Catalfamus, AD 138 3d at 1271-1272). of that initial impact caused “a sudden and unexpected circumstance that left little or no time for thought, consideration, or reflection,” releasing TCAT from liability if the bus driver’s conduct was “appropriate and prudent in an emergency.” (Caristo v. Sanzone, 96 N.Y.2d 172, 174 [2001] [internal quotation marks and citation omitted]) After viewing the videos and the bus driver's testimony, we are satisfied that within four seconds of the initial impact, the bus driver of the bus tried unsuccessfully to drive the bus back to the car retera, but was unable to prevent the bus from colliding with a tree (see Cancellaro v. Shults, 68 AD3d 1234, 1237 [3d Dept 2009], lv denied 14 NY3d 706 [2010]).

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The burden then turns to Appleberry to establish the existence of a substantive issue of fact (see Vega v. Restani Constr.  Corp., 18 NY3d at 503). Unlike the TCAT application, Appleberry relied primarily on pointing to various statements in the exhibits submitted by TCAT to argue that there were issues of fact.4However, Appleberry's arguments either ignore the context in which the statements were made or misinterpret their meaning. For example, Appleberry's argument that the bus driver did not look both ways before entering the intersection was invalidated by the fact that West Green Street and Meadow Street were one-way streets and the video shows the bus driver bus walking towards the entrance looking at the traffic. as the bus approached the intersection. Similarly, Appleberry's claim that the bus driver should have slowed down as he approached the intersection is weak in the circumstances, where the bus only sped up from a standstill just before the intersection. Even when the evidence is viewed from Appleberry's best vantage point, his arguments regarding the alleged issues of fact amount to "mere inferences, expressions of hope, or unsubstantiated claims or assertions" (O'Toole v. Marist Coll. , 206 AD3d 1106, 1108 [3d Dept 2022] [internal quotes and citation omitted]). In short, while the bus driver had "a duty to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident" (Guerin v. Robbins, 182 AD3d 951, 951 [3d Dept 2020][ internal citation marks and omitted citations]), the records lead us to conclude that there was no negligent behavior on the part of the bus driver, and therefore TCAT (see Alamo v. McDaniel, 44 AD3d 149, 153 [1st Dept 2007];  Rowe BC Harrison, AD 303 2d at 864).

ORDERED that the order will be confirmed at no cost.


1. While the lawsuit was pending, Appleberry filed an interim lawsuit against the bus driver, coach, and several of the other passengers on the bus on the day of the accident. The Supreme Court granted Appleberry's motion to consolidate these matters, but neither the interplaintiffs' pleadings nor the order authorizing such consolidation were included in this record. Two passengers named as defendants in the intercomplaint objected to TCAT's motion for summary judgment and their appeals are included in the appeals record, but they did not participate in that appeal.

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2. By writ received on March 7, 2022, the Supreme Court (Masler, J.) retroactively dismissed the interprovincial lawsuit against the bus driver.

3. Although the plaintiff also filed an appeal, he later withdrew it.

4. Appleberry also presented the TCAT defensive training manual and the internal casualty review determination. However, the appeal order does not say whether those documents were considered, and Appleberry argues that the Supreme Court should have considered them against the motion. we disagree. The Supreme Court could not consider the manual because it "imposes a higher standard of care than is required by law" (Conrad v. County of Westchester, 259 A.D.2d 724, 725 [2d Dept 1999];  see Gonzalez v. City of New York, 109 AD3d 510, 512 [2d Dept 2013], see also Moore v. Bremer, 280 AD2d 729, 731 [3d Dept 2001]). Consequently, the determination of the internal accident investigation based on this higher standard could not be taken into account.

clark, j.

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Garry, P.J., Aarons, Reynolds Fitzgerald, and McShan, JJ agree.


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