United States District Court, S.D. New York
FAITH MAURA, AS ADMINISTRATRIX PERSONAL REPRESENTATIVE OF THE ESTATE OF TINA MARIE CHEEK, DECEASED, AND GEORGE ROUMELIOTISAS CHAPTER 7 TRUSTEE IN BANKRUPTCY OF FAITH MAURA, INDIVIDUALLY, Plaintiff,
ACL LEASING, LLC AND JEAN PHILLIPE BRUNY, Defendant.
Patrick W. Brophy, Esq. MCMAHON, MARTINE & GALLAGHER, LLP, Brooklyn, NY, Attorneys for Plaintiff.
David M. Goldman, Esq., SOBEL LAW GROUP, LLC, Huntington, NY, Attorneys for Defendants.
ROBERT W. SWEET, District Judge.
The defendants ACL Leasing, LLC ("ACL") and Jean Phillipe Bruny ("Bruny") (collectively, the "Defendants") have moved pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment dismissing the action of the plaintiffs Faith Maura ("Maura"), as administratrix and personal representative of the estate of Tina Marie Cheek ("Cheek"), and George Roumeliotisas, as Chapter 7 Trustee in Bankruptcy of Faith Maura, Individually (the "Trustee") (collectively, the "Plaintiffs"). Based upon the facts and conclusions set forth below, the motion is denied.
On August 5, 2011, Maura, a Connecticut resident, initiated this personal injury action arising out of the death of her sister, Tina Maria Cheek, who was allegedly struck by a bus owned by ACL and operated by Bruny on September 12, 2009.
The action was removed to the District Court for the Southern District of New York on September 14, 2011 under 11-CV-6413. On February 6, 2012, this Court dismissed the initial action in light of Defendant's pending bankruptcy case before the United States Bankruptcy Court for the District of Delaware. On December 7, 2012, Plaintiffs filed the operative complaint under the current civil case number.
The instant motion was heard and marked fully submitted on October 1, 2014.
The material facts are set forth in the Defendants' Rule 56.1 Statement and the Plaintiffs' Rule 56.1 Statement. The facts are not in dispute except as noted below.
On September 12, 2009, Bruny had a valid commercial driver's license issued in Florida ("CDL") that permitted him to operate the type of bus that he was driving at the time of the incident. Defs.' R. 56.1(a) Statement ¶ 2; Pls.' R. 56.1(a) Statement ¶ 2. Bruny first obtained the CDL in 2006, by attending the CDL School for Special Training in Miami, Florida. Bruny Dep. 26:5-25. Bruny was trained on operating a bus, pedestrian safety and using the vehicle's mirrors to keep a lookout of potential accidents to the side and behind the bus. Bruny Dep. 15:13-19:19, 27:2-28:14. Bruny was trained to check both mirrors and his side window every 10 to 15 seconds in order to identify potential hazards on the sides and rear of the bus. Bruny Dep. 15:13-19:19. He was trained to position his head out of the bus's driver's side window in order to observe pedestrians in proximity to the bus or those approaching the rear tires of the bus. Bruny Dep. 15:13-19:19. Part of Bruny's 2006 CDL training included the use of side view mirrors to avoid pedestrians. Bruny Dep. 15:13-19:19.
Bruny testified that on September 12, 2009, he was driving eastbound on West 40th Street, just prior to letting his passengers off at a stop, and that his traffic light was green as he approached the intersection of West 40th Street and 8th Avenue in Manhattan. Defs.' R. 56.1(a) Statement ¶ 5; Pls.' R. 56.1(a) Statement ¶ 5.
Bruny testified that he first became aware that his bus came into contact with a person after his bus was parked, when speaking with New York Police Department ("NYPD") officers. Defs.' R. 56.1(a) Statement ¶ 3; Pls.' R. 56.1(a) Statement ¶ 3. Bruny testified that, prior to speaking with the NYPD officers, he was not aware of any incident and had stopped the bus at the location only because a group of his passengers requested that they be dropped off there. Defs.' R. 56.1(a) Statement ¶ 3; Pls.' R. 56.1(a) Statement ¶ 3.
Bruny testified that he related a consistent narrative to several NYPD officers with whom he spoke: he did not hit or drive over someone on the street, he did not observe Cheek at all on September 12, 2009 (either before or after the incident), and he had never told any police officer that he did hit someone that day. Defs.' R. 56.1(a) Statement ¶ 4; Pls.' R. 56.1(a) Statement ¶ 4. Plaintiff disputes this testimony on the basis of reports produced by the NYPD, which stated ...