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Fuccio v. The New York City Transit Authority

Supreme Court, New York County

March 20, 2013

LUCIA FUCCIO, Plaintiff,
v.
THE NEW YORK CITY TRANSIT AUTHORITY, BRYAN CHAN, ROYALE DRAPERIES, INC., CARMELA ABRAHANTE, 349 CAR CORP., YSNOC BAUDUY, Defendants Index No. 400353/09

Unpublished Opinion

Motion Date 3/19/13

DECISION AND ORDER

HON. MICHAEL D. STALLMAN, J.

This action arose of out of an accident allegeduly involving four motor vehicles on November 6, 2007, in southbound lanes of the FDR Drive, near an exit to South Street in Manhattan. The four vehicles concerned were: (1) a 2004 Mercedes Benz bearing license plate number CWF5243, allegedly owned and operated by defendant Bryan Chan; (2) a 2005 Jeep Grand Cherokee Laredo bearing license plate number DBH9144, allegedly operated by defendant Carmela Abrahante and allegedly owned by defendant Royale Draperies, Inc; (3) a 2007 Lincoln Town Car bearing license plate number T489011C allegedly operated by defendant Ysnoc Bauduy and allegedly owned by defendant 349 Car Corp; and (4) a bus bearing license plate number K42037, allegedly operated by Walder R. Schubert and allegedly owned by defendant New York City Transit Authority (NYCTA).

Plaintiff Lucia Fuccio was allegedly a passenger on NYCTA's bus.

Abrahante and Royale Draperies, Inc. now move for summary judgment dismissing the action as against them.

BACKGROUND

The multi-vehicle accident spawned this action and twelve others: bus passengers commenced ten actions; Bauduy and Abrahante commenced their own actions as well. All actions were coordinated for discovery and joined for trial as to liability. In addition, this Court also coordinated any contemplated motions for summary judgment as to liability in the actions. At a conference on June 23, 2011, the parties entered into a so-ordered stipulation dated June 23, 2011 which states, in pertinent part:

"Any motion or cross motion for summary judgment in any of the actions joined for trial based on liability shall be served on counsel in all the joined actions, and every party in each joined action has the right to submit papers to the motion or cross motion, and shall be bound by the court's decision in each respective action."

(Sockett Affirm., Ex 5, at Exhibit D). Plaintiff Lucia Fuccio was a signatory to the stipulation. (Id.)

In Ramirez v Chan (Index No. 401704/2008), defendants Carmela Abrahante and Royale Draperies, Inc. moved for summary judgment dismissing the complaint and cross claims in Ramirez v Chan as against them. By decision and order dated July 16, 2012, the Court granted their motion for summary judgment. (Sockett Affirm., Ex 5.) The decision and order states, in pertinent part:

"Notwithstanding issues of fact as to the sequence of collisions, Abrahante and Royale Draperies, Inc. have demonstrated entitlement to summary judgment dismissing the action as against them as a matter of law. Abrahante, as the driver of the lead vehicle, testified at her deposition that she was driving in the right lane of the FDR Drive between 30 and 40 mph (i.e., within the speed limit), and that she did not change lanes. Under any possible version of the sequence of collisions, the unrebutted evidence establishes that defendant Abrahante's operation of [the] Jeep Cherokee Laredo owned by defendant Royale Draperies, Inc. was not negligent as a matter of law."

( Id . at 11-12.)

The Court noted, in its decision and order:

"As discussed previously, plaintiffs in all but three cases agreed in a so-ordered stipulation dated June 23, 2011 that they shall be bound by the Court's decision on any motion or cross motion for summary judgment as to liability made in each respective action.
However, motions for summary judgment were not made in every action where Abrahante and Royale Draperies were named as defendants or co-defendants. Should the parties to the stipulation insist that Abrahante and Royale Draperies, Inc. proceed to joint trial notwithstanding the so-ordered stipulation, Abrahante and Royale Draperies, Inc. may seek leave from this Court to make late summary judgment motions in those actions, based on a showing of good cause. Should those parties to the other three actions who did not sign the stipulation not so stipulate, Abrahante and Royale Draperies, Inc. may similarly move for summary judgment."

(Id. at 12 n 2.)

Meanwhile, in this action, plaintiff Lucia Fuccio moved for partial summary judgment in her favor on the issue of liability against NYCTA. By decision and order July 16, 2012, this Court denied plaintiffs motion for summary judgment and granted reverse summary judgment dismissing the action as against defendants Abrahante and Royale Draperies, Inc. The decision states, in pertinent part:

"Notwithstanding issues of fact as to the sequence of collisions, the Court grants reverse summary judgment dismissing the action as against defendant Abrahante and Royale Draperies, Inc., pursuant to CPLR 3212 (b). As discussed previously, Fuccio agreed in a so-ordered stipulation dated June 23, 2011 that she, like others who executed the stipulation, shall be bound by the Court's decision on any motion or cross motion for summary judgment as to liability made in each respective action. Abrahante and Royale Draperies, Inc. moved for summary judgment dismissing the action as against them in Ramirez v Chan, Index No. 401704/2008. Pursuant to the so-ordered stipulation, Fuccio had an opportunity to oppose Abrahante and Royale Draperies Inc.'s motion. The Court has ...

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