Hidalgo v. Winding Road Leasing Corp. et al

Filing 17

ORDER denying 13 Motion for Summary Judgment: for the reasons articulated in the attached order, Defendants' motion for summary judgement is denied in its entirety. The parties are directed to complete expert discovery according to the follo wing schedule: Plaintiff's expert disclosures due on June 21, 2013; Defendants' expert disclosures due on August 2, 2013; expert depositions to be conducted by August 30, 2013. A joint pretrial order, requests to charge, proposed voir d ire, and fully briefed in limine motions are due on October 18, 2013. Jury selection and trial will begin on November 4, 2013 at 9:30 A.M. A final pretrial conference will be held on October 24, 2013 at 10:00 A.M. Ordered by Magistrate Judge Ramon E. Reyes, Jr. on 5/9/2013. (Morales, Luis)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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OSWALDO HIDALGO,
Plaintiff,
MEMORANDUM & ORDER
-against12-CV-388 (RER)
WINDING ROAD LEASING CORP., PETER
SCALAMANDRE & SONS, INC., SEAMENT
TRANSPORTATION, LLC, and VICTOR A.
LAMBUR,
Defendants.
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RAMON E. REYES, JR., U.S.M.J.:
INTRODUCTION
Oswaldo Hidalgo (“Plaintiff”) commenced this negligence action against Winding Road
Leasing Corp. (“Winding Road”), Peter Scalamandre & Sons, Inc. (“Scalamandre”), and Victor
A. Lambur (“Lambur”) on January 24, 2012, seeking damages for personal injuries resulting
from a vehicle accident. On October 18, 2012, Plaintiff filed an amended complaint adding
Seament Transportation, LLC (“Seament”) (collectively, “Defendants”) ,1 and XYZ Corp. On
October 29, 2012, Plaintiff filed a second amended complaint removing XYZ Corp. Defendants
now move for summary judgment. For the reasons that follow, their motion is denied.
BACKGROUND
Plaintiff is a citizen of Mexico and is not a permanent legal resident of any state. (Dkt.
No. 10 (“2nd Am. Compl.”) ¶ 1; Dkt. No. 15, Exh. A at 7:9-21.) Winding Road, Seament, and

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In the amended complaint, this defendant is named as “Seaman Transportation.” (Dkt.
No. 8 at 1-2.) Seaman Transportation was removed from the second amended complaint and
replaced by Seament Transportation, LLC. (Dkt. No. 10 at 1-2.)

Scalamandre are New York corporations with their principal places of business in Nassau
County, New York. (2nd Am. Compl. ¶¶ 2, 4, 6.) Lambur is a natural person residing in
Suffolk County, New York. (Id. ¶ 8.)
On June 10, 2011, Plaintiff was riding his bicycle against the direction of traffic on
College Point Avenue in Queens, New York. (Defs.’ Stmt. of Undisputed Facts Pursuant to
Local Rule 56.1 (“Defs.’ 56.1 Stmt.”) ¶¶ 2, 10; Pl.’s Stmt. of Undisputed Facts Pursuant to Local
Rule 56.1 (“Pl.’s 56.1 Stmt.”) ¶¶ 2, 10); Dkt. No. 13, Exh. E.) As Plaintiff approached the
intersection of Horace Harding Expressway and College Point Avenue, he saw a tractor-trailer
truck begin to make a wide right turn from Horace Harding Expressway onto College Point
Avenue. (Defs.’ 56.1 Stmt. ¶ 10; Pl.’s 56.1 Stmt. ¶ 10.) Lambur, the truck’s driver, also
observed Plaintiff before turning, stopped his vehicle, and allowed Plaintiff to cross the street.
(Defs.’ 56.1 Stmt. ¶ 18; Pl.’s 56.1 Stmt. ¶ 18.) Once Plaintiff crossed the street, Lambur began to
make a “very slow[]” right turn onto College Point Avenue. (Defs.’ 56.1 Stmt. ¶ 20; Pl.’s 56.1
Stmt. ¶ 20; Dkt. No. 13, Exh. E.)
During the course of the turn, Plaintiff remained stopped in the street near the corner of
the intersection with his left foot on the sidewalk. (Defs.’ 56.1 Stmt. ¶¶ 11, 14-15; Pl.’s 56.1
Stmt. ¶¶ 11, 14-15.) Plaintiff feared that the truck would strike him during the turn so he flung
himself off of his bicycle onto the sidewalk. (Defs.’ 56.1 Stmt. ¶¶ 11, 16; Pl.’s 56.1 Stmt. ¶¶ 11,
16.) Plaintiff’s leg remained in the roadway and the truck’s rear wheels struck Plaintiff’s
leg. (Id.) At no time did any portion of the truck cross the curb. (Defs.’ 56.1 Stmt. ¶ 22; Pl.’s
56.1 Stmt. ¶ 22.)

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The truck was owned by Winding Road at the time of the accident, and it was driven by
Lambur in the course of his employment with Seament. (Defs.’ 56.1 Stmt. ¶ 8; Pl.’s 56.1 Stmt. ¶
8.) Although the truck was empty at the time of the accident, it was en route to pick up cement
for Scalamandre. (Id.)
Plaintiff subsequently brought this action seeking recovery for injuries sustained to his leg
during the collision. (Defs.’ 56.1 Stmt. ¶ 1; Pl.’s 56.1 Stmt. ¶ 1.)
DISCUSSION
I.

Jurisdiction
The court has diversity jurisdiction over this matter as there is complete diversity among

the parties. See 28 U.S.C. § 1332(a)(2); see also First Tenn. Bank, N.A. v. Black, No. 10-CV4925 (FB) (SMG), 2011 WL 7428818, at *1-2 (E.D.N.Y. Sept. 9, 2011), adopted by, 2012 WL
628616 (E.D.N.Y. Feb. 27, 2012). New York law applies. First Tenn. Bank, N.A., 2011 WL
7428818, at *2 (“Th[e] court, sitting in diversity, must apply the law of the forum state, here New
York, on outcome determinative issues[.]”) (citing Bank of N.Y. v. Amoco Oil Co., 35 F.3d 643,
650 (2d Cir. 1994)); see also Momchilov v. Chaduhry, No. 04-CV-3159 (KAM), 2006 WL
1307978, at *2 (E.D.N.Y. May 11, 2006).
II.

Summary Judgment
The standard for summary judgment is well established. The party moving for summary

judgment has the burden of demonstrating the following: (1) “there is no genuine dispute as to
any material fact” and (2) “the movant is entitled to judgment as a matter of law.” FED. R. CIV.
P. 56(a). A genuine dispute as to a material fact is one that “might affect the outcome of the suit

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under the governing law” and that “may reasonably be resolved in favor of either party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 250 (1986).
In determining whether summary judgment is warranted, “[t]he Court ‘is not to weigh the
evidence but is instead required to view the evidence in the light most favorable to the party
opposing summary judgment, to draw all reasonable inferences in favor of that party, and to
eschew credibility assessments.’” Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 122 (2d
Cir. 2004) (quoting Weyant v. Okst, 101 F.3d 845, 854 (2d Cir. 1996)). The nonmovant cannot
create a genuine dispute of material fact by “rely[ing] on the allegations in his or her pleadings,
conclusory statements, or on mere assertions that affidavits supporting the motion are not
credible.” Cushing v. Morning Pride Mfg., L.L.C., No. 05-CV-3612 (DRH), 2008 WL 283772,
at *10 (E.D.N.Y. Jan. 30, 2008) (citation and internal quotation marks omitted).
Specifically, the nonmoving party cannot rest on “mere allegations or denials” but must
instead “set forth specific facts showing there is a genuine issue for trial.” FED. R. CIV. P. 56(e);
see also Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 499 (2d Cir. 2001). “Speculation,
conclusory allegations, and mere denials are not enough to raise genuine issues of fact.” Nat'l
Westminster Bank USA v. Ross, 676 F. Supp. 48, 51 (S.D.N.Y. 1987). Rather, each statement of
material fact by the movant or opponent must be followed by a citation to evidence which would
be admissible, as required by Federal Rule 56(e) and Local Civil Rule 56.1(d).
III.

Negligence
Under New York law, Plaintiff must prove the following to prevail on his negligence

claim: “(1) that the defendant owed a duty to him; (2) that the defendant breached this duty; and
(3) that this breach was the proximate cause of the plaintiff’s injury.” Boria v. Port Auth. of New
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York & New Jersey, No. 95-CV-4912 (SJ), 1998 WL 34588, at *3 (E.D.N.Y. Jan. 29, 1998).
“[S]ummary judgment is a drastic remedy[]” typically “not afforded on issues of negligence
because whether conduct is negligent is a factual determination” in all but the rarest cases. Id.
(citing Kern v. Frye Copysystems, Inc., 878 F.Supp 660, 665 (S.D.N.Y. 1995); Ortiz v. Rosner,
817 F.Supp. 348, 360 (S.D.N.Y. 1993)); see also Derdiarian v. Felix Contracting Corp., 51
N.Y.2d 308 (1980).
A.

Proximate Cause

As an initial matter, it is uncontested that Plaintiff violated the New York Vehicle and
Traffic Law (“VTL”) when he rode his bicycle the wrong way down a one-way street and failed
to yield to the Defendant’s truck.2 (Defs.’ 56.1 Stmt. ¶¶ 10-11; Pl.’s 56.1 Stmt. ¶¶ 10-11.)
However, a plaintiff’s violation of a statute or other such negligent act, does not preclude
recovery, unless such conduct was the “sole proximate cause” of the accident. Compare Gray v.
Wackenhut Servs., Inc., 446 Fed. Appx. 352, 353, 355 (2d Cir. 2011) with Thomas v. O’Brien,
Nos. 08-CV-3250 (RLM), 08-CV-3448 (RLM), 2010 WL 785999, at *4-5 (E.D.N.Y. Feb. 26,
2010); see also Gause v. Martinez, 91 A.D.3d 595, 596 (N.Y. App. Div. 2012); Singh v. Lee, 76
A.D.3d 555, 556 (N.Y. App. Div. 2010); White v. Diaz, 49 A.D.3d. 134, 139 (2008). Thus, a
finding of a plainitff’s culpable conduct does not “inevitably flow” to a finding of proximate
cause. Gaston v. Vilco Realty Co., 215 A.D.2d 174, 174 (N.Y. App. Div. 1995); Schaefer v.
Guddemi, 182 A.D.2d 808, 808 (N.Y. App. Div. 1992).

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A person riding a bicycle on a New York roadway is “subject to all of the duties
applicable to [a motor vehicle operator].” See N.Y. Veh. & Traf. Law § 1231.
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Proximate cause is typically a question for the trier of fact. Hunter v. Deutche Lufthansa
AG, No. 09-CV-3166 (RJD) (JMA), 2013 WL 752193, at *9 (E.D.N.Y. Feb. 27, 2013); Boria,
1998 WL 34588, at *4; Derdiarian, 51 N.Y.2d at 315; Gaston, 215 A.D.2d at 174. Courts
exercise great caution when making proximate cause determinations as a matter of law.
Derdiarian, 51 N.Y.2d at 315. Only where negligence and causation are clear, should proximate
cause be determined at the summary judgment phase. White, 49 A.D.3d at 139; Spence v. Lake
Serv. Station, Inc., 13 A.D.3d 276, 277-78 (N.Y. App. Div. 2004). Therefore, “where there is
any doubt, confusion, or difficulty in deciding whether the issue ought to be decided as a matter
of law, the better course is to leave the point for the jury to decide.” White, 49 A.D.3d at 139.3
New York courts have granted summary judgment in negligence cases where bicyclists’
violations of the VTL were the sole proximate cause of the accident. For instance, a defendant’s
summary judgment motion was granted where a plaintiff crossed an intersection without yielding
to oncoming vehicles or obeying posted traffic signals. Thoresz v. Vallone, 70 A.D.3d 1031,
1031 (N.Y. App. Div. 2010); see also Rosenberg v. Kotsek, 41 A.D.3d 573, 573 (N.Y. App. Div.
2007) (identifying bicyclist who illegally traversed an intersection as the sole proximate cause of
the accident); Trzebacz v. Jara, 11 A.D.3d 531, 531-2 (N.Y. App. Div 2004) (granting summary
judgment where a plaintiff failed to yield at an intersection and offered only conclusory
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I reject Defendants’ argument that they need only present a prima facie case that the
Plaintiff’s own negligence was a proximate cause of the accident in order to prevail on their
summary judgment motion. (Dkt. No. 14 at 1.) The law is clear that there may be more than one
proximate cause of an accident. Gause v. Martinez, 91 A.D.3d 595, 596 (N.Y. App. Div. 2012)
(quoting Lopez v. Reyes–Flores, 52 A.D.3d 785, 786 (N.Y. App. Div. 2008)); Cox v. Nunez, 23
A.D.3d 427, 427 (N.Y. App. Div. 2005); see also Pollack v. Margolin, 84 A.D.3d 1341, 1342
(N.Y. App. Div. 2011); Myles v. Blain, 81 A.D.3d 798, 798 (N.Y. App. Div 2011); Kim v.
Acosta, 72 A.D.3d 648, 648 (N.Y. App. Div 2010). Therefore, Defendants’ argument is
misplaced.
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assertions to oppose motion). These cases, however, are inapposite to the factual situation here:
Plaintiff violated the VTL, but before any collision occurred Defendants acknowledged his
presence in the roadway and permitted him to cross the street and bring his bicycle to a stop.
Indeed, sole proximate cause bicyclist cases typically involve scenarios where the
defendant driver had no opportunity to avoid a collision. See Hornacek v. Hallenbeck, 185
A.D.2d 561, 562 (N.Y. App. Div. 1992). Here, however, Lambur admits that he saw Plaintiff
cross the road and stopped his truck before completing the turn (Defs.’ 56.1 Stmt. ¶ 18; Pl.’s 56.1
Stmt. ¶ 18), and so the Court cannot find as a matter of law that “this accident would not have
happened” if Plaintiff had followed the VTL. (Dkt. No. 14 at 2.) Instead, a factfinder could
conclude that any casual connection between the accident and Plaintiff’s violation of the VTL
was “severed by [Defendants] negligent failure” to avoid hitting Plaintiff after letting him cross.
Sayed v. Aviles, 72 A.D.3d 1061, 1062 (N.Y. App. Div. 2010). Where there is more than one
possible proximate cause of a vehicle collision, courts leave liability determinations for the jury.
See Gause, 91 A.D.3d at 596-97; Singh, 76 A.D.3d at 555-56; Sayed, 72 A.D.3d at 1061-62;
White, 49 A.D.3d at 138-139; Dowling v. Consol. Carriers Corp., 65 N.Y.2d 799, 801 (1985).
What is more, Defendants must demonstrate that they are free from any comparative
negligence to prevail on their motion. See Thomas, 2010 WL 785999, at *4; Gause, 91 A.D.3d
at 596; Singh, 76 A.D.3d at 556 (N.Y. App. Div. 2010). “Under the doctrine of comparative
negligence, ‘a driver who lawfully enters an intersection may still be found partially at fault . . . if
he or she fails to use reasonable care to avoid a collision with another vehicle in the intersection.”
Thomas, 2010 WL 785999, at *4 (citing Romano v. 202 Corp., 305 A.D.2d 576, 577 (N.Y. App.

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Div. 2003); see also Nevarez v. S.R.M. Mgmt. Corp., 58 A.D.3d 295, 297-298 (N.Y. App. Div.
2008).
And thus, even though Plaintiff violated the VTL it cannot be said as a matter of law that
his conduct was the sole proximate cause of the accident. For that reason, the factfinder, not the
Court, should determine whether Defendants’ actions caused or contributed to the accident, or
whether Plaintiff’s VTL violations were the proximate cause. Accordingly, summary judgment
is inappropriate on the issue of proximate cause.
B.

Lambur’s Negligence

Defendants also contend that they are entitled to summary judgment because Plaintiff has
not offered any evidence of Lambur’s negligence in operating his vehicle. (Dkt. No. 13 at 7
(“[Defendants] properly made a right hand turn as close as practicable to the right hand curb and
did not contact or go over the curb at any time.”) Plaintiff, however, claims that Defendants were
negligent because “[Lambur] failed to turn his truck in a safe manner knowing that [Plaintiff] had
crossed in front of him.” (Dkt. No. 15 at 9.) Consequently, there remains a dispute as to whether
Lambur executed the right turn in a reasonably safe manner. (Compare Defs.’ 56.1 Stmt. ¶¶ 2123 with Pl.’s 56.1 Stmt. ¶ 21-23.)
The issue of Lambur’s negligence is therefore precisely the type of question best left to a
factfinder. In fact, in negligence cases the summary judgment standard is rarely met because
even when the parties agree to the material facts there is often a dispute as to whether the parties
acted reasonably. McCummings v. New York City Transit Auth., 81 N.Y.2d 923, 926 (1993);
Ugarriza v. Schmieder, 46 N.Y.2d 471, 475-476 (1979); Andre v. Pomeroy, 35 N.Y.2d 361, 364
(1974); see also Boria, 1998 WL 34588, at *4.

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Because there is still a question as to whether Lambur acted reasonably when turning his
truck, summary judgment in favor of Defendants is inappropriate on the issue of negligence. See
also N.Y. Veh. & Traf. Law § 1146 (“[E]very driver of a vehicle shall exercise due care to avoid
colliding with any bicyclist . . . upon any roadway and shall give warning by sounding the horn
when necessary.”).
C.

Scalamandre’s Liability

Finally, Scalamandre contends that it should be dismissed from the case because it bears
no responsibility for the accident. As a rule, “an employer is vicariously liable under the doctrine
of respondeat superior for injuries resulting from the negligence of employees acting within the
scope of their employment.” Krynski v. Chase, 707 F. Supp. 2d 318, 329 (E.D.N.Y. 2009)
(quoting McDuffie v. Wilner, 415 F. Supp. 2d 412, 419 (S.D.N.Y. 2006)); see also Burlarley v.
Wal–Mart Stores, Inc., 904 N.Y.S.2d 826, 827 (App. Div. 2010). The plaintiff bears the burden
of establishing that the defendant's employee committed the tort while acting within the scope of
employment. See Campos v. City of New York, 759 N.Y.S.2d 843, 844 (N.Y. Sup. Ct. 2003)
(citing Davis v. City of New York, 226 A.D.2d 271, 271-72 (N.Y. App. Div. 1996)).
Additionally, “a general employee of one employer may also be in the special employ of
another[.]” Thompson v. Grumman Aerospace Corp., 78 N.Y.2d 553, 557 (1991); see also
Altinma v. E. 72nd Garage Corp., 54 A.D.3d 978, 981 (N.Y. App. Div. 2008). A special
employee is “one who is transferred for a limited time of whatever duration to the service of
another[.]” Graziano v. 110 Sand Co., 50 A.D.3d 635, 636 (N.Y. App. Div. 2008) (citations
omitted). The employer of a special employee may be liable for that worker’s negligence. Lotz
v. Aramark Servs., Inc., 98 A.D.3d 602, 603 (N.Y. App. Div. 2012). Determination of special

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employee status is typically a factual question reserved for the jury. Thompson, 78 N.Y.2d at 557
(collecting cases). However, the “determination of special employment status may be made as a
matter of law where the particular, undisputed critical facts compel that conclusion and present
no triable issue of fact.” Id.
It is undisputed that the truck was dispatched to pick up cement for Scalamandre. (Defs.’
56.1 Stmt. ¶ 8; Pl.’s 56.1 Stmt. ¶ 8.) Nevertheless, Scalamandre argues that it should be
dismissed from the case because it played no “active role” in the accident. (Defs.’ Mem. of Law
at 8.) However, Scalamandre offers no evidence to substantiate its claim that it did not employ
Lambur. In fact, the only evidence that Scalamandre offers to support its dismissal from the case
is a copy of the vehicle registration for the truck Lambur was driving at the time of the accident.
(Dkt. No. 13, Exh. J.) This evidence does not clarify the employer/employee relationship
between Seament, Lambur, and Scalamandre and it is therefore insufficient to demonstrate that
there is no genuine issue of material fact regarding Scalamandre’s potential liability for Lambur’s
actions. Accordingly, summary judgment is inappropriate on the issue of Scalamandre’s liability.

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CONCLUSION
For the foregoing reasons, Defendants’ motion for summary judgement is denied in its
entirety. The parties are directed to complete expert discovery according to the following
schedule: Plaintiff’s expert disclosures due on June 21, 2013; Defendants’ expert disclosures due
on August 2, 2013; expert depositions to be conducted by August 30, 2013. A joint pretrial
order, requests to charge, proposed voir dire, and fully briefed in limine motions are due on
October 18, 2013. Jury selection and trial will begin on November 4, 2013 at 9:30 A.M. A final
pretrial conference will be held on October 24, 2013 at 10:00 A.M.
SO ORDERED.
Dated: May 9, 2013
Brooklyn, New York

Ramon E. Reyes,,Jr.
Ramon E. Reyes, Jr.
United States Magistrate Judge

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