2019 WL 7160593
Supreme Court, Appellate Division, Second Department, New York.
Frederick M. CIOFFI, et al., Plaintiffs-Respondents-Appellants,
v.
S.M. FOODS, INC., et al., Defendants Third-Party Plaintiffs-Respondents,
Atlanta Foods International, et al., Defendants-Respondents,
Russell McCall’s, Inc., Defendant-Appellant-Respondent, et al., Defendants;
Village of Tuckahoe, et al., Third-Party Defendants-Appellants-Respondents.
2016–03336
|
(Index No. 55391/11)
|
Argued—October 5, 2018
|
December 24, 2019
Attorneys and Law Firms
White & Quinlan, LLP, Garden City, N.Y. (Terence M. Quinlan and Michael White of counsel), for defendant-appellant-respondent.
Maynard O’Connor Smith & Catalinotto, LLP, Albany, N.Y. (Edwin J. Tobin, Jr., of counsel), for third-party defendants-appellants-respondents.
Grant & Longworth (Pollack, Pollack, Isaac & DeCicco, LLP, New York, N.Y. [Brian J. Isaac and Kenneth J. Gorman], of counsel), for plaintiffs-respondents-appellants.
Baxter Smith & Shapiro, P.C., White Plains, N.Y. (Sim R. Shapiro of counsel), for defendants third-party plaintiffs-respondents.
WILLIAM F. MASTRO, J.P., REINALDO E. RIVERA, COLLEEN D. DUFFY, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER
*1 In an action to recover damages for personal injuries, etc., the defendant Russell McCall’s, Inc., appeals, the third-party defendants separately appeal, and the plaintiffs cross-appeal, from an order of the Supreme Court, Westchester County (Mary H. Smith, J.), dated April 4, 2016. The order, insofar as appealed from by the defendant Russell McCall’s, Inc., denied that branch of the motion of the defendants Russell McCall’s, Inc., and Doug Jay which was for summary judgment dismissing the complaint (other than the second cause of action) insofar as asserted against the defendant Russell McCall’s, Inc. The order, insofar as appealed from by the third-party defendants, denied that branch of their motion which was for summary judgment dismissing the third-party complaint on the ground, among others, that the third-party action was barred by the Workers’ Compensation Law. The order, insofar as cross-appealed from by the plaintiffs, inter alia, denied those branches of their motion which were pursuant to CPLR 3025 for leave to serve a supplemental summons and amended complaint and for summary judgment on the issue of liability on the first and second causes of action insofar as asserted against the defendant Daniel Burke, granted those branches of the motion of the defendants Russell McCall, Inc., and Doug Jay which were for summary judgment dismissing the complaint insofar as asserted against Doug Jay and the second cause of action insofar as asserted against the defendant Russell McCall’s, Inc., and granted that branch of the motion of the defendants SM Foods, Inc., GFI Boston, LLC, PLM Trailer Leasing, Daniel Burke, and Ryder Truck Rental, Inc., which was for summary judgment dismissing the complaint insofar as asserted against the defendants PLM Trailer Leasing and Ryder Truck Rental, Inc.

ORDERED that the order is modified, on the law, (1) by deleting the provision thereof denying those branches of the plaintiffs’ motion which were for summary judgment on the issue of liability on the first and second causes of action insofar as asserted against the defendant Daniel Burke, and substituting therefor a provision granting those branches of the motion, (2) by deleting the provision thereof granting that branch of the motion of the defendants Russell McCall’s Inc., and Doug Jay which was for summary judgment dismissing the second cause of action insofar as asserted against the defendant Russell McCall, Inc., and substituting therefor a provision denying that branch of the motion, and (3) by deleting the provision thereof denying that branch of motion of the third-party defendants which was for summary judgment dismissing so much of the third-party complaint as was predicated upon the alleged negligence of the third-party defendant Vincent Pinto in the manner in which he parked his vehicle on the subject roadway, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, with one bill of costs to the third-party defendants, payable by the defendants third-party plaintiffs, one bill of costs payable to the plaintiffs by the defendant Daniel E. Burke, and one bill of costs to the defendants SM Foods, Inc., GFI Boston, LLC, PLM Trailer Leasing, and Ryder Truck Rental, Inc., payable by the plaintiffs.

*2 On May 22, 2009, the plaintiff Frederick M. Cioffi (hereinafter the injured plaintiff), a police officer, allegedly was injured while conducting a traffic stop on foot when he was struck by a tractor trailer operated by the defendant Daniel Burke. The tractor was owned by the defendant Ryder Truck Rental, Inc. (hereinafter Ryder), and the trailer was owned by the defendant PLM Trailer Leasing (hereinafter PLM). Each had been leased to the defendant GFI Boston, LLC (hereinafter GFI), Burke’s employer, pursuant to 30–day rental agreements, each of which, by its respective terms, had expired prior to the accident. Prior to the accident, police officer Vincent Pinto had stopped his vehicle on the roadway in order to ask the injured plaintiff whether he wanted assistance and to assist with a developing traffic delay. At his deposition, Burke testified that he was focused on avoiding Pinto’s vehicle while attempting to execute a turn, and that after he had completed the turn, he saw the injured plaintiff on the ground through his side-view mirror.

The injured plaintiff, and his wife suing derivatively (hereinafter together the plaintiffs), commenced this personal injury action against, among others, the defendants GFI, Ryder, PLM, and Burke, and certain of GFI’s corporate parents and their principals, including SM Foods, Inc. (hereinafter SM Foods), Russell McCall’s, Inc. (hereinafter RMI), and Doug Jay, the president of RMI. The amended complaint alleged that Burke’s negligence and violation of General Municipal Law § 205–e caused the accident, and that the other defendants, among other things, are vicariously liable for his negligence. SM Foods, GFI, PLM, and Burke commenced a third-party action seeking contribution and indemnification against the third-party defendants, Village of Tuckahoe and Officer Pinto, based on the alleged negligence of the injured plaintiff and Pinto.

The defendants SM Foods, GFI, PLM, Burke, and Ryder moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against the defendants PLM and Ryder. The defendants RMI and Jay moved for summary judgment dismissing the complaint insofar as asserted against them. The third-party defendants moved for summary judgment dismissing the third-party complaint. The plaintiffs moved, inter alia, pursuant to CPLR 3025 for leave to serve a supplemental summons and amended complaint and for summary judgment on the issue of Burke’s liability. In the order appealed from, insofar as relevant to these appeals, the Supreme Court denied the plaintiffs’ motion and granted that branch of the motion of the defendants SM Foods, GFI, PLM, Burke, and Ryder which was for summary judgment dismissing the complaint insofar as asserted against the defendants PLM and Ryder. The court also granted those branches of the motion of the defendants RMI and Jay which were for summary judgment dismissing the complaint insofar as asserted against Jay and the second cause of action, alleging a violation of General Municipal Law § 205–e, insofar as asserted against RMI. In addition, the court denied the third-party defendants’ motion, except to the extent that the third-party complaint alleged that Pinto had negligently directed Burke to make the left turn. The defendant RMI and the third-party defendants separately appeal, and the plaintiffs cross-appeal.

The plaintiffs contend that the Supreme Court erred in denying that branch of their motion which was for summary judgment on the issue of Burke’s liability. As to the first cause of action, alleging common-law negligence, the court denied the plaintiffs’ motion for summary judgment on the ground that they had failed to establish that the injured plaintiff was free from comparative fault. Since the order appealed from was entered, the Court of Appeals has clarified that a plaintiff moving for summary judgment on the issue of a particular defendant’s liability “does not bear the double burden of establishing a prima facie case of defendant’s liability and the absence of his or her own comparative fault” (Rodriguez v. City of New York, 31 N.Y.3d 312, 324–325, 76 N.Y.S.3d 898, 101 N.E.3d 366; see Tsyganash v. Auto Mall Fleet Mgt., Inc., 163 A.D.3d 1033, 1034, 83 N.Y.S.3d 74; Poon v. Nisanov, 162 A.D.3d 804, 807, 79 N.Y.S.3d 227). Thus, the plaintiffs were not required to demonstrate that the injured plaintiff was free from comparative negligence in order to obtain summary judgment on the issue of Burke’s liability on the first cause of action.

*3 General Obligations Law § 11–106 allows a police officer to bring a tort claim for injuries suffered in the line of duty as the result of, inter alia, the negligence of any person other than the police officer’s employer or co-employee (see Williams v. City of New York, 2 N.Y.3d 352, 363, 779 N.Y.S.2d 449, 811 N.E.2d 1103; Rodriguez v. County of Rockland, 43 A.D.3d 1026, 1028, 842 N.Y.S.2d 488). The evidence submitted on the plaintiffs’ motion established that, at the time of the accident, the injured plaintiff was standing in the southbound lane of Midland Avenue on the driver’s side of a car which he had stopped at the intersection of Midland Avenue and Winter Hill Road. Burke was stopped at the traffic light at the corner of eastbound Winter Hill Road and Midland Avenue. When the light changed, Burke began his left turn onto northbound Midland Avenue. Prior to beginning his turn, Burke was aware that there was a police officer conducting a traffic stop on foot and a police car parked on the northbound side of Midland Avenue. Although Burke believed he could make the turn safely, the rear of the trailer hit the injured plaintiff.

The foregoing established that Burke failed to exercise due care in the operation of the tractor trailer, and that such failure was a proximate cause of the injured plaintiff’s injuries, thereby establishing, prima facie, the plaintiffs’ entitlement to judgment as a matter of law on the issue of Burke’s liability on the first cause of action (see e.g. Vehicle and Traffic Law § 1146[a]; Yuemei Wu v. Automotive Rentals, Inc., 157 A.D.3d 752, 752–753, 69 N.Y.S.3d 55; Gandarillas v. EAN Holdings, LLC, 152 A.D.3d 571, 572, 58 N.Y.S.3d 523; Bush v. Kovacevic, 140 A.D.3d 1651, 1653, 33 N.Y.S.3d 623; Benn v. New York Presbyt. Hosp., 120 A.D.3d 453, 456, 990 N.Y.S.2d 584). In opposition, the defendants failed to raise a triable issue of fact regarding Burke’s negligence.

The plaintiffs also established, prima facie, Burke’s liability as to the second cause of action, alleging a violation of General Municipal Law § 205–e. As relevant here, that statute permits a police officer to bring a tort claim for injuries sustained “while in the discharge or performance at any time or place of any duty imposed by … superior officer[s]” where such injuries occur “directly or indirectly as a result of any neglect, omission, willful or culpable negligence of any person or persons in failing to comply with the requirements of any of the statutes, ordinances, rules, orders and requirements of the federal, state, county, village, town or city governments” (General Municipal Law § 205–e[1]; see Gammons v. City of New York, 24 N.Y.3d 562, 567–568, 2 N.Y.S.3d 45, 25 N.E.3d 958; Williams v. City of New York, 2 N.Y.3d at 363–364, 779 N.Y.S.2d 449, 811 N.E.2d 1103). In order to recover under the statute, “a police officer must demonstrate injury resulting from negligent noncompliance with a requirement found in a well-developed body of law and regulation that imposes clear duties” (Williams v. City of New York, 2 N.Y.3d at 364, 779 N.Y.S.2d 449, 811 N.E.2d 1103 [internal quotation omitted]; see Gammons v. City of New York, 24 N.Y.3d at 570, 2 N.Y.S.3d 45, 25 N.E.3d 958; Lewis v. Palazzolo, 143 A.D.3d 783, 785–786, 40 N.Y.S.3d 138).

Vehicle and Traffic Law § 1146(a) requires a driver to “exercise due care to avoid colliding with any … pedestrian.” Here, the unrebutted evidence established a prima facie violation of § 1146(a), as it demonstrated that Burke failed to exercise due care to avoid hitting the injured plaintiff. In opposition, the defendants failed to raise a triable issue of fact. Accordingly, the plaintiffs also were entitled to summary judgment on the issue of Burke’s liability on the second cause of action.

We agree with the Supreme Court’s denial of that branch of the motion of RMI and Jay which was for summary judgment dismissing the complaint insofar as asserted against RMI. As relevant to RMI’s appeal, the plaintiffs allege that RMI is vicariously liable for Burke’s negligence, either as Burke’s employer or, alternatively, as the alter ego of GFI, which was Burke’s employer. The evidence submitted by RMI and Jay on their motion failed to eliminate all triable issues of fact as to whether RMI employed Burke on the day of the accident (see Carrion v. Orbit Messenger, 82 N.Y.2d 742, 744, 602 N.Y.S.2d 325, 621 N.E.2d 692; DeMartino v. 3858, Inc., 114 A.D.3d 634, 636, 979 N.Y.S.2d 648; cf. Raja v. Big Geyser, Inc., 144 A.D.3d 1123, 1124, 42 N.Y.S.3d 288). The evidence also failed to eliminate all questions of fact as to whether RMI was the alter ego of GFI (see DeMartino v. 3858, Inc., 114 A.D.3d at 636, 979 N.Y.S.2d 648; see generally Olivieri Constr. Corp. v. WN Weaver St., LLC, 144 A.D.3d 765, 767, 41 N.Y.S.3d 59; Last Time Beverage Corp. v. F & V Distribution Co., LLC, 98 A.D.3d 947, 950, 951 N.Y.S.2d 77; Williams v. Lovell Safety Mgmt. Co., LLC, 71 A.D.3d 671, 672, 896 N.Y.S.2d 150).

*4 Because questions of fact exist as to whether RMI may be vicariously liable for Burke’s negligence, the Supreme Court should not have granted summary judgment dismissing the second cause of action, alleging a violation of General Municipal Law § 205–e, insofar as asserted against RMI. However, we agree with the court’s determination granting that branch of the motion of RMI and Jay which was for summary judgment dismissing the complaint insofar as asserted against Jay, as those defendants established, prima facie, that Jay neither participated in the commission of the tort nor dominated either RMI or GFI so as to warrant piercing the corporate veil (see generally Cortlandt St. Recovery Corp. v. Bonderman, 31 N.Y.3d 30, 47, 73 N.Y.S.3d 95, 96 N.E.3d 191; JGK Indus., LLC v. Hayes N.Y. Bus., LLC, 145 A.D.3d 979, 980, 45 N.Y.S.3d 479; Rajeev Sindhwani, M.D., PLLC v. Coe Bus. Serv., Inc., 52 A.D.3d 674, 677, 861 N.Y.S.2d 705).

The plaintiffs contend that the Supreme Court erred in granting a renewed motion for summary judgment dismissing the complaint insofar as asserted against the defendants Ryder and PLM. “Although successive motions for summary judgment are disfavored, a subsequent summary judgment motion may be properly entertained when it is substantively valid and the granting of the motion will further the ends of justice and eliminate an unnecessary burden on the resources of the court” (Graham v. City of New York, 136 A.D.3d 747, 748, 24 N.Y.S.3d 754; see Kolel Damsek Eliezer, Inc. v. Schlesinger, 139 A.D.3d 810, 811, 33 N.Y.S.3d 284; Vinar v. Litman, 110 A.D.3d 867, 868, 972 N.Y.S.2d 704). Here, the court providently exercised its discretion in permitting a renewed motion for summary judgment dismissing the complaint insofar as asserted against Ryder and PLM.

The Graves Amendment (49 USC § 30106) shields the owner of a leased or rented motor vehicle from liability for personal injuries resulting from the use of such vehicle “during the period of the rental or lease, if (1) the owner … is engaged in the trade or business of renting or leasing motor vehicles; and (2) there is no negligence or criminal wrongdoing on the part of the owner” (49 USC § 30106[a]; see Verdi v. Jacoby & Meyers, LLP, 154 A.D.3d 901, 63 N.Y.S.3d 71; Anglero v. Hanif, 140 A.D.3d 905, 906, 35 N.Y.S.3d 152; Bravo v. Vargas, 113 A.D.3d 579, 580, 978 N.Y.S.2d 307). In order to obtain summary judgment dismissing a complaint on the ground that it is shielded from liability by the Graves Amendment, a defendant must establish, inter alia, that the injured plaintiff’s claim arose “during the period of the rental or lease” (49 USC § 30106[a]; see Currie v. Mansoor, 159 A.D.3d 797, 798, 71 N.Y.S.3d 633; Lynch v. Baker, 138 A.D.3d 695, 697, 30 N.Y.S.3d 126).

There is no dispute that the tractor was owned by Ryder and that it was rented to GFI on September 18, 2008. On its prior motion for summary judgment, Ryder submitted only the expired 30–day rental agreement. In a prior decision in this case, we agreed with the Supreme Court that the submission of the expired lease agreement was insufficient to establish Ryder’s entitlement to summary judgment since it failed to eliminate all triable issues of fact as to whether there was any lease agreement in effect between Ryder and GFI on the date of the accident (see Cioffi v. S.M. Foods, Inc., 129 A.D.3d 888, 892, 10 N.Y.S.3d 620). In support of the instant motion, Ryder has now produced the invoice for the subject vehicle which covered rental for the date of the accident, as well as GFI’s payment of that invoice. The September 2008 rental agreement, Ryder’s ongoing invoices for rental of the subject vehicle, including the date of the subject accident, and GFI’s ongoing payments, together establish, prima facie, that the plaintiffs’ claims against Ryder arose “during the period of the rental” (49 USC § 30106[a] ). Nothing in the record rebuts that showing or raises a triable issue of fact.

*5 Similarly, as to PLM, it is undisputed that the trailer was owned by PLM and was rented to GFI on March 18, 2009, for the period from April 6, 2009, to April 30, 2009. In support of this motion, PLM has produced, inter alia, GFI’s ongoing payments of invoices, including the date of the subject accident, which demonstrate that the rental period extended beyond the initial agreement and was in effect at the time that the injured plaintiff’s claim arose (see 49 USC § 30106[a] ). In opposition, the plaintiffs failed to raise a triable issue of fact. Accordingly, we agree with the Supreme Court that Ryder and PLM were entitled to summary judgment dismissing the complaint insofar as asserted against each of them.

Turning to the third-party complaint, “[a]n employer’s liability for an on-the-job injury is generally limited to workers’ compensation benefits, but when an employee suffers a ‘grave injury’ the employer also may be liable to third parties for indemnification or contribution” (Rubeis v. Aqua Club Inc., 3 N.Y.3d 408, 412–413, 788 N.Y.S.2d 292, 821 N.E.2d 530; see Workers’ Compensation Law § 11). Grave injuries include, inter alia, “an acquired injury to the brain caused by an external physical force resulting in permanent total disability” (Workers’ Compensation Law § 11). A “permanent total disability” requires a showing that the injured employee is no longer employable “in any capacity” (Rubeis v. Aqua Club, Inc., 3 N.Y.3d at 417, 788 N.Y.S.2d 292, 821 N.E.2d 530; see Grech v. HRC Corp., 150 A.D.3d 829, 830, 54 N.Y.S.3d 433). Here, the conflicting expert opinions proffered by the parties raised a triable issue of fact as to whether the injured plaintiff suffered a grave injury within the meaning of Workers’ Compensation Law § 11 (see Bush v. Mechanicville Warehouse Corp., 79 A.D.3d 1327, 1329, 912 N.Y.S.2d 768; Mendez v. Union Theological Seminary in City of New York, 26 A.D.3d 260, 261, 809 N.Y.S.2d 77; Way v. Grantling, 289 A.D.2d 790, 792–793, 736 N.Y.S.2d 424). Thus, we agree with the Supreme Court’s denial of that branch of the third-party defendants’ motion which was for summary judgment dismissing the third-party complaint insofar as asserted against the Village on the ground that the injured plaintiff did not suffer a grave injury within the meaning of the Workers’ Compensation Law.

The third-party defendants also contend that they were entitled to summary judgment dismissing so much of the third-party complaint as was predicated upon the alleged negligence of Officer Pinto in the manner in which he parked his vehicle upon the roadway. They assert that Officer Pinto was entitled to the privilege afforded by Vehicle and Traffic Law § 1104, and therefore can only be liable under a reckless disregard standard of care. Pursuant to Vehicle and Traffic Law § 1104, the driver of an emergency vehicle, when involved in an “emergency operation,” may, inter alia, stop, stand, or park irrespective of the other provisions of the Vehicle and Traffic Law (Vehicle and Traffic Law § 1104[a], [b][1]). The provision does not relieve such a driver of the duty to drive with due regard for the safety of all persons, nor does it protect the driver from the consequences of his or her reckless disregard for the safety of others (see Vehicle and Traffic Law § 1104[e]). Further, the reckless disregard standard “only applies when a driver of an authorized emergency vehicle involved in an emergency operation engages in the specific conduct exempted from the rules of the road by Vehicle and Traffic Law § 1104(b)” (Kabir v. County of Monroe, 16 N.Y.3d 217, 220, 920 N.Y.S.2d 268, 945 N.E.2d 461). Vehicle and Traffic Law § 114–b defines the limited circumstances that constitute an “emergency operation.” It provides that an “emergency operation” exists when an authorized emergency vehicle “is engaged in transporting a sick or injured person, transporting prisoners, delivering blood or blood products in a situation involving an imminent health risk, pursuing an actual or suspected violator of the law, or responding to, or working or assisting at the scene of an accident, disaster, police call, alarm of fire, actual or potential release of hazardous materials or other emergency. Emergency operation shall not include returning from such service” (Vehicle and Traffic Law § 114–b). Here, at the time that Officer Pinto parked his vehicle on the roadway, the injured plaintiff was conducting a seatbelt traffic checkpoint. Officer Pinto testified in his deposition that he had stopped in order to ask the injured plaintiff whether he needed assistance and to assist with a traffic delay that was developing. Contrary to the third-party defendants’ contention, Officer Pinto was not engaged in an emergency operation at the subject time (see Portalatin v. City of New York, 165 A.D.3d 1302, 1303, 87 N.Y.S.3d 73; Quintero v. City of New York, 113 A.D.3d 414, 415, 978 N.Y.S.2d 155; Rusho v. State of New York, 76 A.D.3d 783, 784, 906 N.Y.S.2d 836; cf. Jones v. Albany County Sheriff’s Dept., 123 A.D.3d 1331, 1332, 999 N.Y.S.2d 260; Banks v. City of New York, 92 A.D.3d 591, 939 N.Y.S.2d 39; McCarthy v. City of New York, 250 A.D.2d 654, 654–655, 673 N.Y.S.2d 160). Accordingly, Officer Pinto’s conduct is subject to the principles of ordinary negligence rather than the reckless disregard standard applicable to acts protected by Vehicle and Traffic Law § 1104 (see Kabir v. County of Monroe, 16 N.Y.3d at 220, 920 N.Y.S.2d 268, 945 N.E.2d 461; Reid v. City of New York, 148 A.D.3d 739, 740, 48 N.Y.S.3d 462; Benn v. New York Presbyt. Hosp., 120 A.D.3d 453, 455, 990 N.Y.S.2d 584; Fajardo v. City of New York, 95 A.D.3d 820, 943 N.Y.S.2d 587; Katanov v. County of Nassau, 91 A.D.3d 723, 725, 936 N.Y.S.2d 285).

*6 Nevertheless, even if the manner in which Officer Pinto parked his vehicle on the roadway was negligent, it merely furnished the condition for the subsequent collision and was not a proximate cause of the accident (see Faust v. Gerde, 150 A.D.3d 1204, 1205, 52 N.Y.S.3d 898; Montalvo v. United Parcel Serv., Inc., 117 A.D.3d 1004, 1005, 986 N.Y.S.2d 551; Lee v. D. Daniels Contr., Ltd., 113 A.D.3d 824, 825, 978 N.Y.S.2d 908; Batista v. City of New York, 101 A.D.3d 773, 778, 956 N.Y.S.2d 85; Morales v. Cox, 74 A.D.3d 922, 901 N.Y.S.2d 864). Accordingly, the third-party defendants were entitled to summary judgment dismissing so much of the third-party complaint as was predicated upon the alleged negligence of Officer Pinto in the manner in which he parked his vehicle upon the roadway.

Leave to amend a pleading is to be freely given absent surprise or prejudice resulting from the delay (see CPLR 3025[b]). Whether to grant such leave is within the motion court’s discretion, the exercise of which will not be lightly disturbed (see CDx Labs., Inc. v. Zila, Inc., 162 A.D.3d 972, 973, 80 N.Y.S.3d 382; APF Mgt. Co., LLC v. Munn, 151 A.D.3d 668, 670, 56 N.Y.S.3d 514). Here, in light of the extended delay in moving for leave to serve the supplemental summons and amended complaint, and the lack of a reasonable excuse for the delay, the Supreme Court did not improvidently exercise its discretion in denying that branch of the plaintiffs’ motion which was pursuant to CPLR 3025 for leave to serve a supplemental summons and amended complaint (see Pergament v. Roach, 41 A.D.3d 569, 572, 838 N.Y.S.2d 591; Young v. A. Holly Patterson Geriatric Ctr., 17 A.D.3d 667, 792 N.Y.S.2d 914).

The parties’ remaining contentions are without merit.

MASTRO, J.P., RIVERA, DUFFY and BRATHWAITE NELSON, JJ., concur.
All Citations
— N.Y.S.3d —-, 2019 WL 7160593, 2019 N.Y. Slip Op. 09251

2020 WL 85152

United States District Court, N.D. Texas, Dallas Division.
James LEIGHTY, et al., Plaintiffs,
v.
STONE TRUCK LINE INC., et al., Defendants.
No. 3:19-cv-2615-L
|
Signed 01/06/2020
Attorneys and Law Firms
Richard Reagan Sahadi, Pro Hac Vice, Sahadi Legal Group, Corpus Christi, TX, for Plaintiffs.
David L. Sargent, Martha Marie Posey, Sargent Law PC, Dallas, TX, for Defendants.

MEMORANDUM OPINION AND ORDER
REBECCA RUTHERFORD, UNITED STATES MAGISTRATE JUDGE
*1 Before the Court is Defendants Stone Truck Line, Inc. and Jarmanjit Singh’s Motion to Transfer Venue under 28 U.S.C. § 1404(a). Mot. (ECF No. 6). This Motion was referred to the United States magistrate judge under 28 U.S.C. § 636(b) for hearing, if necessary, and determination.1 Ord. (ECF No. 11). For the following reasons, the Court GRANTS the Motion.

Background
Plaintiffs James Leighty, Ashlee Leighty, and Amanda Helton are citizens of Ohio. Compl. 1-2 (ECF No. 1). Defendants Stone Truck Line, Inc. and Jarmanjit Singh are citizens of California. Id. 2. Plaintiffs bring wrongful death and negligence claims against Defendants, individually and on behalf of their father, Robert Eugene Leighty’s, estate, arising out of a motor-vehicle incident, which occurred in Shamrock, Wheeler County, Texas, on September 12, 2019. Id. 1-3. Plaintiffs allege the incident took place when Robert Leighty was riding his motorcycle eastbound on Interstate 40, and Defendant Singh struck Robert Leighty with his tractor-trailer, catching him underneath the tractor-trailer, injuring him severely, and ultimately causing his death. Id. 3. Defendant Stone Truck Line owned or leased Singh’s tractor-trailer. Id. 2; Answer 2 (ECF No. 8). On November 25, 2019, Defendants filed a motion to transfer venue from the Dallas Division of the Northern District of Texas to the Amarillo Division of the Northern District of Texas. Mot. (ECF No. 6). The parties filed a response and reply, and the motion is now ripe for consideration. Resp. (ECF No. 15); Reply (ECF No. 17).

Legal Standard and Analysis
“For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented.” 28 U.S.C. § 1404(a). Section 1404(a) requires the court to first evaluate whether the suit could have been brought in the district or division to which the moving party proposes transferring it. In re Horseshoe Entm’t, 337 F.3d 429, 433 (5th Cir. 2003) (per curiam). If the case could properly have been brought in the proposed forum, then the court must consider certain private and public interest factors to determine whether, on balance, transferring the case would best serve the interests of justice and be more convenient for the parties and witnesses. In re Volkswagen of Am., Inc., 545 F.3d 304, 315 (5th Cir. 2008) (en banc). The private interest factors include: “ ‘(1) the relative ease of access to sources of proof; (2) the availability of compulsory process to secure the attendance of witnesses; (3) the cost of attendance for willing witnesses; and (4) all other practical problems that make trial of a case easy, expeditious and inexpensive.’ ” Id. (quoting In re Volkswagen AG, 371 F.3d 201, 203 (5th Cir. 2004) (per curiam)). And the public interest factors are: “ ‘(1) the administrative difficulties flowing from court congestion; (2) the local interest in having localized interests decided at home; (3) the familiarity of the forum with the law that will govern the case; and (4) the avoidance of unnecessary problems of conflict of laws [or in] the application of foreign law.’ ” Id. (quoting In re Volkswagen AG, 371 F.3d at 203). “The § 1404(a) factors apply as much to transfers between divisions of the same district as to transfers from one district to another.” In re Radmax, Ltd., 720 F.3d 285, 288 (5th Cir. 2013) (per curiam). A court may not transfer a case where doing so only shifts the venue’s inconvenience from one party to the other. Evol, Inc. v. Supplement Servs., LLC, 2010 WL 972250, at *1 (N.D. Tex. Feb. 28, 2010), adopted by 2010 WL 982564 (N.D. Tex. Mar. 16, 2010) (citing Fowler v. Broussard, 2001 WL 184237, at *2 (N.D. Tex. Jan. 22, 2001) (Fitzwater, J.)). “ ‘The moving parties bear the burden of proving by a preponderance of the evidence that transfer is appropriate.’ ” Id. (quoting Bank One, N.A. v. Euro-Alamo Invs., Inc., 211 F. Supp. 2d 808, 812 (N.D. Tex. 2002) (Fitzwater, J.)). “A motion to transfer venue pursuant to § 1404(a) should be granted if ‘the movant demonstrates that the transferee venue is clearly more convenient’ ….” In re Radmax, 720 F.3d at 288 (citation omitted).

I.
*2 Here, the parties do not dispute whether venue is proper in the Northern District of Texas; therefore, the Court need only determine whether Plaintiffs could properly have filed their lawsuit in the Amarillo Division. Because the motor-vehicle accident out of which Plaintiffs’ claims arise occurred in Wheeler County, Texas, venue is proper in the Amarillo Division of the Northern District of Texas. See 28 U.S.C. § 1391(b)(2) (“A civil action may be brought in … a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated”); 28 U.S.C. § 124(a)(5) (“The Amarillo Division comprises the counties of Armstrong, Brisco, Carson, Castro, Childress, Collingsworth, Dallam, Deaf Smith, Donley, Gray, Hall, Hansford, Hartley, Hemphill, Hutchinson, Lipscomb, Moore, Ochiltree, Oldham, Parmer, Potter, Randall, Roberts, Sherman, Swisher, and Wheeler.”). Having satisfied the threshold inquiry of whether the suit could have been brought in the proposed division, the Court now evaluates whether the private and public interest factors counsel in favor of transferring the case.

A.
The Court finds the private interest factors weigh in favor of transferring the case to the Amarillo Division. As mentioned above, the private interest factors include: (1) the relative ease of access to sources of proof; (2) the availability of compulsory process to secure the attendance of witnesses; (3) the cost of attendance for willing witnesses; and (4) all other practical problems that make trial of a case easy, expeditious and inexpensive. In re Volkswagen of Am., 545 F.3d at 315.

The first private interest factor involves “the relative ease of access to sources of proof.” Here, the parties will be able to more easily access sources of proof in the Amarillo Division. Relevant sources of proof, including principal witnesses such as investigating police officers and medical providers local to Shamrock, Texas, are likely to be located closer to the accident site in Shamrock, Wheeler County, Texas, which is less than 100 miles from Amarillo, but approximately 300 miles from Dallas. Compl. 3; Defs.’ Br. 6 (ECF No. 7). Plaintiffs contend, however, the “only factors in favor of transfer [related to access to sources of proof] would be the physical scene and location of Mr. Leighty’s medical treatment.” Resp. Br. 5 (ECF No. 16). And Plaintiffs argue these factors do not favor transfer because the scene has already been fully documented by the Department of Public Safety, and Mr. Leighty was only treated by Shamrock via EMS and at Shamrock General Hospital “for approximately 10 minutes prior to his passing.” Id. Plaintiffs also contend the Dallas Division is more convenient for experts who might have to fly in to testify, though Plaintiffs have not specifically identified particular experts or witnesses for whom this would be more convenient. Id. Therefore, the Court finds this factor weighs in favor of transferring the case because, as a practical matter, the proximity of the Amarillo Division to the accident scene makes access to relevant sources of proof easier.

The second factor “addresses the availability of compulsory process to secure the attendance of witnesses.” Federal Rule of Civil Procedure 45 provides that “[a] subpoena may command a person to attend a trial, hearing, or deposition only … within 100 miles of where the person resides, is employed, or regularly transacts business….” Fed. R. Civ. P. 45(c)(1)(A). Therefore, most of the nonparty witnesses located near Shamrock, Texas, would be beyond the subpoena power of the Dallas Division. Plaintiffs contend this is not problematic because “[t]he only witnesses requiring compulsory process in the Amarillo division would be the investigating officer and first responders,” and it would be “highly unlikely that any such witnesses would be called live with the exception of the investigating officer.” Resp. Br. 6. Though Plaintiffs indicate the investigative officer would require using the Court’s subpoena power, neither Plaintiffs nor Defendants identify specific unwilling witnesses by name. See id. Nonetheless, this factor does not weigh against transferring; the Court finds it neutral. See Pinnacle Label, Inc. v. Spinnaker Coating, LLC, 2009 WL 3805798, at *10 (N.D. Tex. Nov. 12, 2009) (Fitzwater, C.J.) (concluding this factor is neutral where no unwilling witnesses are identified); Ternium Int’l U.S.A. Corp. v. Consol. Sys., Inc., 2009 WL 464953, at *3 (N.D. Tex. Mar. 25, 2009) (Fish, J.) (same).

*3 The third factor concerns the cost of attendance for willing witnesses. The cost for witnesses local to the accident site to attend court proceedings are greater if the case remains in the Dallas Division, since Dallas is approximately 300 miles from Shamrock. While Defendants have “established at a general level that the persons from whom its witnesses are likely to be drawn are located geographically closer to [Amarillo, Texas] than to Dallas,” Defendants have not “identif[ied] the key witnesses and the general content of their testimony.” Pinnacle Label, 2009 WL 3805798, at *11 (quoting Sargent v. Sun Trust Bank, N.A., 2004 WL 1630081, at *3 (N.D. Tex. July 20, 2004) (Fitzwater, J.)) (internal quotation marks omitted). Plaintiffs contend that travelling to Dallas is more convenient than traveling to Amarillo because “the majority of the witnesses are located thousands of miles from Amarillo or Dallas, and it is more convenient to travel to Dallas than Amarillo.” Resp. Br. 6. Plaintiffs also fail to identify any specific witnesses. Nonetheless, the Fifth Circuit has stated that “it is an ‘obvious conclusion’ that it is more convenient for witnesses to testify at home.” In re Volkswagen of Am., 545 F.3d at 317 (citation omitted). Therefore, the Court finds this factor weighs in favor of transferring the case.

The fourth private interest factor concerns “the practical problems that make trial of a case easy, expeditious, and inexpensive.” Pinnacle Label, 2009 WL 3805798, at *11. The Court finds that, as a practical matter, transferring the case to the Amarillo Division, closer to where the incident occurred and where non-party witnesses are likely to be located, will make for a more expeditious and inexpensive trial. In their Response, Plaintiffs assert the decedent’s motorcycle and Defendant Stone Truck’s tractor-trailer have already been inspected; Plaintiffs’ counsel is located in Corpus Christi, Texas; Defendants are residents of California; Plaintiffs are residents of Ohio; and “[t]he only connection to Wheeler County is that the incident made the basis of this lawsuit occurred there.” Resp. Br. 2. However, “[t]he convenience of the witnesses is often regarded as the most important factor to be considered in deciding whether to transfer venue,” particularly “the convenience of non-party witnesses.” Travelers Indem. Co. of Am. v. Nat’l Union Fire Ins. Co. of Pittsburgh, 2002 WL 1575409, at *2 (N.D. Tex. July 16, 2002) (citations omitted). Accordingly, the Court finds this factor and all of the private interest factors on balance weigh in favor of transferring this case to the Amarillo Division.

B.
The Court now considers the public interest factors, which it finds also weigh in favor of transferring the case to the Amarillo Division. The public interest factors include: (1) the administrative difficulties flowing from court congestion; (2) the local interest in having localized interests decided at home; (3) the familiarity of the forum with the law that will govern the case; and (4) the avoidance of unnecessary problems of conflict of laws or in the application of foreign law. In re Volkswagen of Am., 545 F.3d at 315.

The first factor requires the Court to consider the administrative difficulties associated with court congestion in both divisions. While Plaintiffs note the “Dallas Division is run efficiently and timely disposes of its cases,” they do not present any evidence indicating the Amarillo Division would not dispose of cases with equal efficiency. Resp. Br. 6. The Court finds this factor to be neutral.

The second factor considers the lawsuit’s local interest. Plaintiffs contend “[t]here is very little ‘local interest’ in transferring the case to the Amarillo Division,” because “[n]one of the parties are from that area.” Resp. Br. 6. Defendants assert, however, that the Dallas Division has no interest at all in adjudicating this lawsuit since Dallas also has no connection to the lawsuit. Defs.’ Br. 9-10. Because the incident occurred in the Amarillo Division, the Court finds Amarillo has a greater interest in adjudicating this dispute. This factor weighs in favor or transferring the case.

*4 The third and fourth factors involve the familiarity of the forum with the law governing the case and the avoidance of conflict of laws problems or the application of foreign law. Because both the Amarillo Division and the Dallas Division are in the Northern District of Texas, the Court finds that both fora would be equally familiar with the law that will govern the case and that transfer would not create a conflict of laws problem. Thus, these factors are both neutral. Though three are neutral, and one weighs in favor of transfer, the Court finds the public interest factors favor transferring the case to the Amarillo Division.

Considering the public and private interest factors together, the Court finds Defendants discharged their burden to prove the Amarillo Division is clearly more convenient than the Dallas Division. Accordingly, in its discretion, for the convenience of the parties and witnesses, and so the interest of justice might be served, the Court grants Defendants’ motion to transfer Plaintiffs’ lawsuit to the Amarillo Division of the Northern District of Texas.

Conclusion
For the foregoing reasons, the Court GRANTS Defendants’ Motion to Transfer Venue (ECF No. 6) and TRANSFERS this case to the Amarillo Division of the Northern District of Texas.

SO ORDERED.

All Citations
Slip Copy, 2020 WL 85152

Footnotes

1
A magistrate judge enjoys the authority to decide a motion to transfer venue under 28 U.S.C. § 636(b)(1)(A). Evol, Inc. v. Supplement Servs., LLC, 2010 WL 982564, at *1 (N.D. Tex. Mar. 16, 2010).