Thompson v. Futri Transportation Corp., 102457/11
February 04, 2014,
Cite as: Thompson v. Futri Transportation Corp., 102457/11, NYLJ 1202641029457,
at *1 (Sup., NY, Decided January 6, 2014)
Justice Arlene P. Bluth
Decided: January 6, 2014
The defendants Futri Transportation Corp. (Futri) and Walter O. Pazmino
(Pazmino) move, pursuant to CPLR 3211 and 3212, for an order granting
summary judgment dismissing the complaint and cross claims.
This is an action to recover damages for personal injuries (a broken right
ankle) suffered by the plaintiff Kenneth Thompson (Thompson) in a collision
between Thompson's Vespa motor scooter and the passenger side rear
door of a taxi cab owned by Futri and driven by Pazmino. The defendant
Greg Adwar (Adwar) was the passenger who, after paying the fare, who opened the door.
In support of their motion, Futri and Pazmino allege that at the time of
the collision the taxi cab had been stopped for 30 seconds on 47th Street
behind three cars waiting for a red light at Fifth Avenue when Adwar decided
to end the trip just short of his destination. At the time of the accident,
the cab was in the road's right lane, just two feet away from the
cars parked on the right at the curb. Futri and Paxmino argue that the
taxi cab did not cause the collision, and that
Thompson's overtaking, and squeezing past the taxi on the right, was
the sole proximate cause of the collision.
In opposition, Thompson argues that opening a car's door in an active
lane of traffic poses a risk of injury to others. Thompson also argues
that Pazmino violated Vehicle and Traffic Law §1214 by: complying
with the passenger Adwar's request to end the ride, failing to warn
Adwar that Thompson's scooter was approaching from behind, failing
to wait and pull to the curb, and failing to stop Adwar from getting out
thereby causing Adwar to open the door of the taxi on a side which was
available to moving traffic.
Also in opposition, Adwar argues that there are triable issues of fact
concerning: whether Pazmino violated Vehicle and Traffic Law §1214,
the speed of the Vespa scooter, Pazmino's observations of the Vespa,
and whether Pazmino violated NYC Taxicab rules for dropping off a passenger
in a safe location.
"[T]he proponent of a summary judgment motion must make a prima facie
showing of entitlement to judgment as a matter of law, tendering sufficient
evidence" to eliminate any material issue of fact from the case (Smalls
v. AJI Indus., Inc., 10 NY3d 733, 735  [internal quotation marks
and citation omitted]). The "[f]ailure to make such showing requires
denial of the motion, regardless of the sufficiency of the opposing papers"
(Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 ). Once
this showing has been made, however, the burden shifts to the party opposing
the motion for summary judgment to produce evidentiary proof in admissible
form sufficient to establish the existence of material issues of fact
which require a trial of the action. "[M]ere conclusions, expressions
of hope or unsubstantiated allegations or assertions are insufficient"
for this purpose (Zuckerman v. City of New York, 49 NY2d 557, 562
). "It is not the function of a court deciding a summary judgment
motion to make credibility determinations or findings of fact, but rather
to identify material triable issues of fact (or point to the lack thereof)"
(Vega v. Restani Constr. Corp., 18 NY3d 499, 505 ).
"In considering the motion for judgment as a matter of law, the trial
court must afford the party opposing the motion every inference which
may properly be drawn from the facts presented, and the facts must be
considered in a light most favorable to the nonmovant" (Szczerbiak
v. Pilat, 90 NY2d 553, 556 ). However, "the mere happening
of an accident does not constitute negligence" (Candelier v. City
of New York, 129 AD2d 145, 148 [1st Dept 1987]).
Contrary to the plaintiff's assertion, it is undisputed that the taxi
cab was in the right lane, parallel to, and just two feet away from a
row of cars parked at the curb. The deposition testimony, together with
the Police accident report, make it clear that the taxi cab was in the
Vehicle and Traffic Law §1252 provides in relevant part that:
"(b) The operator of a motorcycle shall not overtake and pass in the
same lane occupied by the vehicle being overtaken.
(c) No person shall operate a motorcycle between lanes of traffic or between
adjacent lines or rows of vehicles."
Vehicle and Traffic Law §1214 provides;
"Opening and closing vehicle doors
No person shall open the door of a motor vehicle on the side available
to moving traffic unless and until it is reasonably safe to do so, and
can be done without interfering with the movement of other traffic, nor
shall any person leave a door open on the side of a vehicle available
to moving traffic for a period of time longer than necessary to load or
The Rules of the City of New York (34 RCNY 4-11) provide in relevant part:
"© Pickup and discharge of passengers by taxis, commuter vans
and for-hire vehicles. Operators of taxis, commuter vans and for-hire
vehicles may, in the course of the lawful operation of such vehicles,
temporarily stop their vehicles to expeditiously pick up or discharge
passengers at the curb in areas where standing or parking is prohibited.
Taxis, commuter vans and for-hire vehicles, while engaged in picking up
or discharging passengers must be within 12 inches of the curb and parallel
thereto, but may stop or stand to pick up or discharge passengers alongside
a vehicle parked at the curb only if there is no unoccupied curb space
available within 100 feet of the pickup or discharge location; however,
picking up or discharging passengers shall not be made:
(1) Within a pedestrian crosswalk.
(2) Within an intersection, except on the side of a roadway opposite a
street which intersects but does not cross such roadway.
(3) Alongside or opposite any street excavation when stopping to pick up
or discharge passengers obstructs traffic.
(4) Under such conditions as to obstruct the movement of traffic and in
no instance so as to leave fewer than 10 feet available for the free movement
of vehicular traffic.
(5) Where stopping is prohibited.
(6) Within a bicycle lane.
(7) Within horse-drawn carriage boarding areas."
Futri and Pazmino submit evidence establishing their prima facie entitlement
to judgment as a matter of law. The evidence establishes that the plaintiff
Thompson violated Vehicle and Traffic Law §1252 both by passing the
taxi in the same lane occupied by the taxi, and operating the scooter
between adjacent lines or rows of vehicles.
On the other hand, the evidence establishes that Futri and Pazmino did
not violate either Vehicle and Traffic Law §1214, or 34 RCNY 4-11.
Pazmino was permitted by the Rules of the City of New York to discharge
his passenger alongside a vehicle parked at the curb. Vehicle and Traffic
Law §1214 was not violated because the opened door was on the right/curb
side of the taxi while it was stopped in the right lane, and §1214
speaks in terms of opening a vehicle's door on the side available
to moving traffic. For purposes of the statute, the two-foot wide space
on the right side of the taxi was not a side of the taxi available to
Nor does Thompson deny that he was squeezing through the space between
the cab and the parked cars; that is, Thompson does not deny that he was
passing the cab within the cab's own lane. While the movants affirmatively
state that, at the time of the impact, the most-right lane had cars parked
(as does the police report and police diagram), Thompson does not deny
it. Rather, he states that he does not recall (Thompson deposition, page
29 line 19 and page 111 lines 6-19). Elsewhere, he states that he was
in the right most lane, but that was before the impact, not at the time
of the impact.
There is simply nothing in the motion papers to demonstrate that the movant/taxi
breached any duty owed to Thompson or, assuming such a breach, that any
conduct on the part of Pazmino was a proximate cause of the accident.
Accordingly, it is
ORDERED that the defendants Futri Transportation Corp. and Walter O. Pazmino's
motion for summary judgment dismissing the complaint and cross claims
is granted and the complaint and cross claims are dismissed as against
Futri Transportation Corp. and Walter O. Pazmino; and it is further
ORDERED that movant shall serve a copy of this order on the Trial Support
Office, and the Clerk respectfully requested to remove Futri Transportation
Corp. and Walter O. Pazmino from the caption of this case.
Dated: January 6, 2014
New York, New York