Cruzado v. Samadder

Cruzado v Samadder 2024 NY Slip Op 32421(U) July 11, 2024 Supreme Court, New York County Docket Number: Index No. 153187/2021 Judge: Denise M. Dominguez Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

INDEX NO. 153187/2021 NYSCEF DOC. NO. 109 RECEIVED NYSCEF: 07/12/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. DENISE M DOMINGUEZ PART 35 Justice ------¥~-------------------------------------------------------------------------X INDEX NO. 153187/2021 KEVEN CRUZADO MOTION SEQ. ~O. _ _ _00_3_ __ Plaintiff

- V -

UTTAM SAMADDER, METROPOLITAN TRANSPORTATION DECISION AND ORDER ON AUTIIORITY, NEW YORK CITY TRANSIT AUTHORITY, MOTION AMERICAN TRANSIT INSURANCE COMPANY, PHILLIP Ri\BINOWlTZ

Defendant~

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The following c-filcd documents, listed by NYSCEF document number (Motion 003) 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88. 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108 were read on this motion to/for AMEND CAPTION/PLEADINGS

For the reasons that follow, Plaintiffs second motion to amend the complaint is denied and

the cross motion for sanctions by Defendants, Metropolitan Transportation Authority and New

York City Transit Authority (Transit) is also denied.

Background

This personal injury matter arises out of a motor vehicle accident between a Honda vehicle

(Honda) and a Toyota vehicle (Toyota) in Queens County on December 31, 2019. It is alleged

that the Honda, operated by Rayon Morgan became disabled and was stopped on the right lane of

the road when the Toyota operated by Defendant lJttam Sa.madder (Samaddcr) and owned by

Defendant Phillip Rabinowitz (Rabinowitz), hit the Honda. It is further alleged that at that time

and date of the accident, the Toyota was operating under an Access-a-Ride vehicle in conjunction

15318712021 CRUZADO, KEVEN vs. SAMADDER, UTT AM ET AL Page 1 of 5 Motion No. 003

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INDEX NO. 153187/2021 NYSCEF DOC. NO. 109 RECEIVED NYSCEF: 07/12/2024

with Transit's Access-a-Ride/paratransit program. Plaintiff Kevin Cruzado was a passenger in the

Toyota and alleges sustaining serious injuries.

Pre-note of issue and prior to discovery conferences, Defendant Transit moved pursuant to

CPLR 3211 to dismiss Plainti11~s second cause of action for negligent hiring, training, supervising

and retention. Transit also moved to dismiss an unplcd cause of action for negligent cntrustment

raised in Plaintiffs bill ofpartieulars. Plaintiff opposed and cross-moved to amend the complaint.

By Order of this Court dat~d May 15, 2023, Motion Seq. 1, Transit's motion was granted,

Plaintiff's cross-motion was denied without prejudice, and the parties were ordered to submit a

proposed preliminary conference order by July 10, 2023.

Plaintiff now moves again pursuant to CPLR 3025[b] to amend the complaint. Plaintiff

alleges that the proposed additions should be granted as they solely amplify the already plead

causes of actions for negligence and respondent superior against Transit and Rabinowitz. Transit

opposes and alleges that Plaintiff's motion should be denied on the grounds that it is attempting to

add dismissed causes of actions and that the new allegations arc devoid of merit. Transit also cross-

moves for sanctions.

Di."iCussion

Plaintiffs 11-fotion to Amend the Complaint

Pursuant to CPLR 3025 [b], a party at any time may freely amend or supplement their

pleadings by setting forth additional or subsequent transactions or occurrences with leave of court

or by stipulation by both sides (CPLR 3025 [b ]). While courts generally grant such motions, the

proposed additions must be just, absent of prejudice and surprise to the opposing side, may not be

lacking in merit, and may not circumvent a prior dismissal order (see CPLR 30251b], Panto v Jlvf

Salvage Co., 157 AD2d 582 [1' 1 Dept 1990]; Jacobson v MciVei/ Consumer & 5jxcialty Pharm,

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Footnotes

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[68] AD3d 652 [1 st Dept 2009]; AfBIA Ins. Corp. v. Greystone & Co .. Inc .. 74 i\D3d 499 [1 st Dept 20 l O[: Societe Nationale D'r.:r:ploitation Induslrielle Des Tahacs Et Allwneltes v. Salomon Bros. Int'!, 268 A2d 373 llst Dept 2000]; Gross v. Neiman, 147 AD3d 505 !_1st Dept 2017]; DiPasquale v Securit_v Afutual L{fe Insurance, 293 A.D.2d 394 [1 st Dept 2002]). Here, Plaintiff's most substantive proposed additions concern Rabinowitz's and Transit's failure to qualify the driver and properly administer the Access-A-Ride program. For example, Plaintiff's proposed new paragraphs #35 and #37 read: "Defendant Rabinowitz and Defendant NYCTA O\vcd a duty to Plaintiff to exercise reasonable care in ensuring that their operators, employees, agents, and assigns were properly qualified to operate AAR vehicles, to do so in a non-negligent manner, and to ensure that they arc properly qualified in all motor vehicle harm- reduction and collision-avoidance procedures/techniques." "Furthermore, Defendants NYCT A, MTA and Rabinowitz were negligent in that they did not ensure that Defendant Samadder was properly qualified in collision- avoidance procedures, and failed to ensure that Defendant Samadder was properly qualified to operate a motor vehicle in a manner which would minimize any potential damages in the event of a collision. Moreover, Defendants NYCTA, MTA and Rabinowitz negligently failed to ensure Defendant Samadder was properly qualified to operate the Vehicle, in that they failed to take measures to ensure that Defendant Samadder was fully qualified to operate a motor vehicle in a non-negligent manner of the date of the collision" (NYSCEF Doc. 63 ). 153187/2021 CRUZADO, KEVEN vs. SAMADDER, UTT AM ET AL Page 3 of 5 Motion No. 003 [* 3] 3 of 5 Upon review, Plaintiff rather that complying with this Court's Order to submit a proposed preliminary conference order, moved to amend the complaint without submitting any additional discovery and without any showing that such amendments would be sufficiently palpable and not deprived of merit (AfBJA Ins. Corp., 74 AD3d 499). Furthermore, granting such amendments would circumvent this Court's prior decision dismissing the cause of action for negligent training, supervision, hiring and retention and the cause of action for neg! igent entrustment against Transit (see Societe ,Vationale D'Exploitation Jndustrielle Des Tabacs Et Allumettes. 268 A2d 373; Gross,

[147] AD3d 505; DiPasquale, 293 A.D.2d 394). Accordingly, Plaintiff's motion to amend is denied." Transit's Cross-Motion/or Sanctions Transit also cross-moves for sanctions pursuant to 22 NYCRR § 130-1.1 (a), seeking attorney's fees related to Plaintiff's ii.ling of this instant motion. It is important to note that this Court denied Plaintiff's initial motion to amend without prejudice as Plaintiff did not offer any showing for the proposed additions. Also, by Order of this Court dated May 8, 2023, Motion Seq. 2, a separate action commenced in Queens CoW1ty Supreme Court by Honda driver, Plaintiff, Rayon Morgan, against the O'Wncr and operator of the Toyota, Defendants Rabinowitz and Samadder was consolidated with this action. In light of the above and the circumstances relating to this motion, this Court finds that Plaintiffs conduct does not rise to the level of frivolous conduct at this time (see e.g. Tavella v Tavella, 25 AD3d 523 fl st Dept 2006]). Accordingly, the cross-motion for sanctions is also denied. It is therefore ORDERED that Plaintiff's second motion to amend the complaint is denied in its entirety; it is further ORDERED that Transit's cross-motion for sanctions is also denied; it is further 15318712021 CRUZADO, KEVEN vs. SAMADDER, UTT AM ET AL Page 4 of 5 Motion No. 003 [* 4] 4 of 5 ORDERED that within 20 days, counsel for Plaintiff shall serve a copy of this Order with notice of entry upon al I parties and the Clerk of the Court; it is further ORDERED that this action is transferred to Part 21; and it is further ORDERED that the parties are to contact Part 21 within 30 days of entry of this Order to schedule a preliminary conference in compliance with Court rules and the existing Part 21 rules. 7/1112024 DATE ~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION GRANTED 0 DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE 15318712021 CRUZADO, KEVEN vs. SAMADDER, UTT AM ET AL Page 5 of 5 Motion No. 003 5 of 5 [* 5]