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Diallo v. Todria

Diallo v Todria 2025 NY Slip Op 31106(U) April 3, 2025 Supreme Court, Kings County Docket Number: Index No. 508141/2023 Judge: Anne J. Swern 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.

FILED: KINGS COUNTY CLERK 04/03/2025 11:24 AM INDEX NO. 508141/2023 NYSCEF DOC. NO. 70 RECEIVED NYSCEF: 04/03/2025

At an IAS Trial Ten11, Part 75 ofthe Supreme Court ofthe·StateofNew York, Kings County; at the Courthouse locateq. at 360 Adams Street; Brooklyn, New York ori the 3rd day of April 2025. PRESENT: HON.ANNE 1. SWERN,.J.s.c.

NZINGAH DIALLO. DECISION & ORDER Plaintiff(s); Index No.: 508141/2023

-against- Calendar No.: 6 & 7

MAMUKATODRIA, GIA GIORGOBIANI, LYFT. INC., Motion Seq.: 001 -& 002 SEBASTIAN WILBERGER and AVALON SANDERS, . Return Date: 2/13/2025 Defendant(s).

Recitation of the following papers as required byCPLR 2219(a): Papers Numbered MS#l ·Wilberger's Notice ofMotion,Affirmation, Affidavits and Exhibits. (NYSCEF 20-29) ...................... ,.......... ,................ ... ,... l, 2 Affirmation and Exhibits in Opposition (NYSCEF 51-66) ........... ,.......... ,...........3 Reply Affirmation.{NYSCEF 66). ........................... ,....... ,...., ......... ,.................... ,,.,,.4

MS#:² Lyft's Notice ofMotion, Affirmation, Affidavits and Exhibits (NYSCEF 31-41) ., ............. ,..................,....... ,..•..•... ;.... .5, 6 Affirmation arid Exhibits irt Opposition. (NYSCEF 56~61) .................................. 7 Reply Affirmation (NYSCEF 65) ................ ,..... '. .......... ,.. ,. ................................... 8

Upon the foregoing papers and after oral argument, the decisionand order ofthe Court

is as follows:

This is an action for personal injuries arising out of a two-vehicle accident.. Plaintiff was

a passenger in Giorgobiani 's vehicle. Plaintiff connected with Giorgobiani through Lyft..

.Lyft has moved for summary judgment based Ol) the affidavit of Giorgobiani thather

vehicle was struck when the Wilberger vehicle made a left tum (NYSCEF 38). The affidavit

states that Giorgobiani 's vehicle was stopped at a red light. In opposition~ plaintiff offers her pre'.'

trialtestimony during an Examination Under Oath conducted by American Transit Insurance

508141/2.023 Page 1 of4

FILED: KINGS COUNTY CLERK 04/03/2025 11:24 AM INDEX NO. 508141/2023 NYSCEF DOC. NO. 70 RECEIVED NYSCEF: 04/03/2025

Footnotes

[1] of 4 [* 1] Company (NYSCEF 61). Plaintifftestified that the traffic lightwas green, and the vehicle was moving at the time of the accident. However, Giorgobiani was looking down at her phone and touching the buttons. (NYSCEF 42, ppA0-43). The Wilberger vehicle was a 1999 Mercury Sedan with a Texas license plate number LXZ2693 (NYSCEF 52 and 58). Wilberger moves to dismiss this action pursuant to CPLR § 3211 [a] (7] baSed on the affidavits of his insurance broker, claims handler for Travelers Insurance Company, and Wilberger. Wilberger states that on 9/25/22, he sold the 1999 Mercury for cash through FacebookMarketplace and does not know the identities of the buyer (NYSCEF 26,pp.l-2). Each affidavit• attests to the fact that on J 0/12/2022, plaintiff surrendered the New York State license plates #KSJ8939 for the vehicle involved in this accident (NYSCEF 26-28). Wilberger does not know the alleged driverAvalon Sanders (NYSCEF 26). 1 The claims handler obtained a NYS DMV Registraticm Record Expansion that documents the voluntary plate surrender fot the 1999 grey Mercury sedan (NYSCEF 27, p. ll), and a Texas DMV search that revealed license plate #LXZ2693 was registered to a White 2015 Infiniti QSO (id., p.9). However, the Registration Record Expansion lists Wilbergeras the current owner ofthe vehicle as of 10/4/2023 (NYSCEF 27, p.11 ).2 Wilberger did not provide a title search for the 1999 Mercury sedan. Both motions are denied. When deciding a summary judgment motion, the Court's only role is to identify the existence of triable issues, and not to determine the merits ofany such issues (Vega v Restani Construction Corp., 18NY3d 499, 505 [2012]) or the credibility of the .movant's versicm of .events (see Xiang Fu He v .Troon Management, Inc., 34 NY3d 167, .175 [2019] [internal citations 1 The1 poJice report documents that. Sanders was a passenger nodhe driver. The driver fled the scene. (NYSCEF 52 and 58); · ·· . 2 Wilberger's name and information does not appear in the "Prior Owners" section of the REGISTRATION RECORD EXPANSION, . 508141/2023 Pagei o/4

[2] of 4 [* 2] omitted]). The Court nmst view the evidence in the light mostfavorable to the nprunoving party, affording them the benefit of all reasonable inferences thatcan be drawn from the evidence (see Negri v Shop & Stop, Inc.~ 65 NY2d 625, 626 [1985]).The motion should be denied where the facts are in dispute, where different inferences tnay be drawn from the evidence; or where the credibility of the witnesses is in question (see Cameron v City ofLong Beach, 297 AD2d 773;

[774] [2d Dept. 2002]). Although Lyft established a prima facie entitled to summary judgment, plaintiff established a question of fact of whether Giorgobiani was looking down at her mobile phone at the time of the accident. The Court cannot resolve the issues of credibility vis-a,.vis the conflicting versions of events mGiorgobiani's affidavit and plaintiff's sworn testimony under oath (Xiang Fu He v Troon Management; Inc., 34 NY3d 175). All drivers have a duty to see whatthere is to be seen (Fi[ippazzo v Santiago, 277AD2d 419, 420 [2d Dept 2000] and Byrne v Calogero; 96 AD3d 704,705 [2dDept2016]). A Jury must weigh the parties' credibility and detennine whether Gioro biani. was negJigent by looking at her mo bile phone while driving. If the jury answers this .question in the positive:, then it must then determine whether this conduct was a "superseding cause which severed the causal connection'' between the negligence of Wilberger's alleged driver while makingaleft turn and plaintiff's injuries{Adami v Wallace, 68 . . .. ·~·· ... AD3d.1397, 1399 [3 Dept 2009]). Wilberger's tnotion to dismiss is denied based on the failure to submitthe results of a New York and Texas DMV title· search for the vehicle irt question to determine the owner of the. vehicle on the date of the accident. The plate surrender is insufficient to establish the transfer of ownership of the vehicie because the Registration Record Expansioitstill lists \Vil berger as the owner of the vehicle invoived in the accident The Court has considered Wiiberg¢r's argument .S0SJ41ao2i Page3~ji 3 of 4 [* 3] concerning the cause of action for negligent entrustment and finds same to be without merit. This argument overlooks the allegation that Wilberger was the operator of the motor vehicle on the date of accident (NYSCEF 1, ,r9). Accordingly, it is hereby ORDERED that LYFT, INC. 's motion for summary judgment dismissing the complaint per CPLR § 3212 is denied, and it is further ORDERED that WILBERGER'S motion to dismiss per CPLR § 3211 [a] [7] is denied. This constitutes the decision and order of the Court. ENTER: / I ' Hon. Anne J. Swern, J.S.C. Dated: 4/f2025 For Clerks use only : MG _ __ MD _X __ 1&2 Motion seq.# _ _ __ 508141/2023 Page4 o/4 4 of 4 [* 4]