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Aracelis On v. BKO Express LLC

Supreme Court of New York, First Department

January 17, 2017

Aracelis On, et al., Plaintiffs-Appellants,
BKO Express LLC, et al., Defendants-Respondents.

         Plaintiffs appeal from the order of the Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered March 20, 2015, which granted defendants' motion for summary judgment dismissing the complaint.

          Meagher & Meagher, P.C., White Plains (Keith Clarke of counsel), for appellants.

          Dwyer & Taglia, New York (Gary J. Dwyer of counsel), for respondents.

          Rolando T. Acosta, J.P., Angela M. Mazzarelli, David B. Saxe, Karla Moskowitz, Ellen Gesmer, JJ.


          SAXE, J.

         This appeal requires us to consider, once again, a seminal issue that has been central to our study of tort law since Palsgraf v Long Is. R.R. Co. (248 NY 339 [1928]) - how the foreseeability of harm interconnects with the imposition of a duty in tort. The facts are as follows:

         On a late, rainy summer night in 2009, defendant Mohamed Laaribi, a livery cab driver for defendant BKO Express LLC, picked up two fares from a street hail after he had stopped for a red light. The passengers asked Laaribi to take them to a Hunts Point address in the Bronx, and gave him some payment in advance to induce him to provide transportation. He agreed to take them. The cab, a 2003 Lincoln sedan, had an inoperative CB radio and did not have a partition between the front and back seats; the emergency lights, installed to be used to alert police and passersby if help was necessary, were working.

         When they arrived at the destination, one of the passengers asked Laaribi to go a bit farther. Although this request made him suspect that they were planning to rob him, he drove them to the next block, where it was dark, and stopped the car. One of the passengers then said, "Give me my money back" and "Give me your f-ing money too, " and put something to the back of Laaribi's head that Laaribi thought might be a gun or other weapon. Laaribi gave him money, but the passenger demanded more. The second passenger never said anything, but he looked strong, and Laaribi was afraid he was going to hit him. When the second passenger began to get out, Laaribi accelerated the car a bit, thinking to get away from him, but the first passenger stayed in the car and hit him, saying, "Stop your f-ing car." The passenger again demanded more money, and when Laaribi again told him he had given him all the money, the passenger hit him again, harder than the first time. At that point, Laaribi said, he was rendered unconscious, after which his car proceeded forward, causing the collisions that ultimately injured plaintiff Aracelis On. At some point during the incident, Laaribi activated his emergency light, but he explained that he never tried to call the base because everything happened in a short time and because the passengers had instructed him not to move or do anything.

         Aracelis On brought this negligence action against Laaribi and BKO Express for her personal injuries; her husband Joe On sues for loss of consortium.

         The motion court correctly granted defendants' motion for summary judgment dismissing the complaint.

         Initially, there is no issue of fact regarding Laaribi's loss of consciousness from the attack, or the assertion that the collision occurred while he was unconscious. Laaribi's assertions are supported by medical evidence of a head injury, and nothing in the records contradicts or undermines Laaribi's assertions. In the absence of any showing contrary to Laaribi's position that he was unconscious at the time of the collision with plaintiffs' car, the emergency doctrine precludes plaintiffs' negligence claim against Laaribi, as well as any claim against cab owner BKO Express based on a theory of vicarious liability. Laaribi's loss of consciousness due to the attack on him qualified as "a sudden and unforeseen emergency not of the actor's own making" (Rivera v New York City Tr. Auth., 54 A.D.3d 545');">54 A.D.3d 545 [1st Dept 2008], quoting Caristo v Sanzone, 96 N.Y.2d 172, 175 [2001]).

         The issue requiring greater attention is whether plaintiffs may proceed with their direct claim against BKO Express on the theory that as the livery cab's owner, it violated a duty it owed to plaintiffs, by failing to install a partition or maintain a working CB radio in the cab. The motion court concluded that the failure to install a partition, as then required by the Rules of the City of New York, could not form the basis of a finding of negligence against BKO Express because plaintiffs were not within the class of individuals protected by that rule.

         We conclude that plaintiffs' claim against BKO Express cannot prevail because, as the motion court correctly held, the owner of the livery cab does not owe a duty to the general public to install a partition in its cab. Any legal duty to install a partition, assuming any such duty is owed, is owed to the driver alone.

         It is a fundamental principle of tort law that a plaintiff in a negligence claim "must demonstrate (1) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom" (Pasternack v Laboratory Corp. of Am. Holdings, 27 N.Y.3d 817, 825 [2016] [internal quotation marks omitted]) . The question of whether a defendant owes a legally recognized duty of care to a plaintiff is the "threshold question in any negligence action" (Hamilton v Beretta U.S.A. Corp., 96 N.Y.2d 222, 232 [2001]), and it is a legal question for the court (Purdy v Public Adm'r of County of Westchester, 72 N.Y.2d 1, 8 [1988]). "In the absence of a duty, as a matter of law, there can be no liability" (Pasternack, 27 N.Y.3d at 825). That is, if a defendant ...

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