MTA defendant in New York

2022Freedman's contention that it was unaware of the case's status because the other parties failed to apprise it of various events, such as filing of the note of issue and the striking of the MTA defendants' answer for failure to appear at a court-ordered deposition, did not constitute "good cause" for the delay in making the motion (CPLR 3212[a]; see Brill v City of New York , 2 NY3d 648, 652 [2004]).

2022Freedman's contention that it was unaware of the case's status because the other parties failed to apprise it of various events, such as filing of the note of issue and the striking of the MTA defendants' answer for failure to appear at a court-ordered deposition, did not constitute "good cause" for the delay in making the motion (CPLR 3212[a]; see Brill v City of New York , 2 NY3d 648, 652 [2004]).

2021Because the MTA failed to proffer a reasonable excuse for Tobin's default in answering the complaint, its motion to vacate the default judgment entered against him must [*2]be denied regardless of whether the MTA demonstrated that he had a potentially meritorious defense to the action ( see M.R. v 2526 Valentine LLC , 58 AD3d 530, 532 [1st Dept 2009]).

2021Because the MTA failed to proffer a reasonable excuse for Tobin's default in answering the complaint, its motion to vacate the default judgment entered against him must [*2]be denied regardless of whether the MTA demonstrated that he had a potentially meritorious defense to the action ( see M.R. v 2526 Valentine LLC , 58 AD3d 530, 532 [1st Dept 2009]).

2021We further find that Supreme Court properly denied the MTA's motion for vacatur pursuant to CPLR 5015(a)(1), because its bare denial of service of the summons and complaint upon Tobin did not constitute a reasonable excuse for his delay in answering ( see HSBC Bank USA, N.A. v Powell , 148 AD3d 1123, 1124 [2d Dept 2017]).

2021We further find that Supreme Court properly denied the MTA's motion for vacatur pursuant to CPLR 5015(a)(1), because its bare denial of service of the summons and complaint upon Tobin did not constitute a reasonable excuse for his delay in answering ( see HSBC Bank USA, N.A. v Powell , 148 AD3d 1123, 1124 [2d Dept 2017]).

2014Alternatives Corp., 35 AD3d 849, 850 [2006]; cf. Mitskevitch v City of New York, 78 AD3d 1137, 1138 [2010]; Kelleher v Mt.

2014Alternatives Corp., 35 AD3d 849, 850 [2006]; cf. Mitskevitch v City of New York, 78 AD3d 1137, 1138 [2010]; Kelleher v Mt.

2014Alternatives Corp., 35 AD3d 849, 850 [2006]; cf. Mitskevitch v City of New York, 78 AD3d 1137, 1138 [2010]; Kelleher v Mt.

2014Alternatives Corp., 35 AD3d 849, 850 [2006]; cf. Mitskevitch v City of New York, 78 AD3d 1137, 1138 [2010]; Kelleher v Mt.

2013Auth., 6 NY3d 800 [2006]; Forminio v City of New York, 68 AD3d 924, 925 [2009]; Napoli v Ambus, Inc., 31 AD3d 623 [2006]; Georges v Rajnarine, 277 AB2d 283 [2000]).

2013Auth., 6 NY3d 800 [2006]; Forminio v City of New York, 68 AD3d 924, 925 [2009]; Napoli v Ambus, Inc., 31 AD3d 623 [2006]; Georges v Rajnarine, 277 AB2d 283 [2000]).

2013Here, the MTA defendants demonstrated, prima facie, that probable cause existed to commence and maintain a criminal proceeding against the plaintiff for assaulting Todd, based upon Todd’s identification of the plaintiff as the perpetrator from a photo array, the plaintiffs admission to hitting someone in the face during the fight, and the fact that the plaintiff fit Todd’s description of the perpetrator, given before the photo array (see Rivera v County of Nassau, 83 AD3d 1032, 1033 [2011]; Redmond v City of White Plains, 77 AD3d 902 [2010]; Baker v City of New York, 44 AD3d 977, 979-980 [2007

2013Here, the MTA defendants demonstrated, prima facie, that probable cause existed to commence and maintain a criminal proceeding against the plaintiff for assaulting Todd, based upon Todd’s identification of the plaintiff as the perpetrator from a photo array, the plaintiffs admission to hitting someone in the face during the fight, and the fact that the plaintiff fit Todd’s description of the perpetrator, given before the photo array (see Rivera v County of Nassau, 83 AD3d 1032, 1033 [2011]; Redmond v City of White Plains, 77 AD3d 902 [2010]; Baker v City of New York, 44 AD3d 977, 979-980 [2007

2013Here, the MTA defendants demonstrated, prima facie, that probable cause existed to commence and maintain a criminal proceeding against the plaintiff for assaulting Todd, based upon Todd’s identification of the plaintiff as the perpetrator from a photo array, the plaintiffs admission to hitting someone in the face during the fight, and the fact that the plaintiff fit Todd’s description of the perpetrator, given before the photo array (see Rivera v County of Nassau, 83 AD3d 1032, 1033 [2011]; Redmond v City of White Plains, 77 AD3d 902 [2010]; Baker v City of New York, 44 AD3d 977, 979-980 [2007

2013Here, the MTA defendants demonstrated, prima facie, that probable cause existed to commence and maintain a criminal proceeding against the plaintiff for assaulting Todd, based upon Todd’s identification of the plaintiff as the perpetrator from a photo array, the plaintiffs admission to hitting someone in the face during the fight, and the fact that the plaintiff fit Todd’s description of the perpetrator, given before the photo array (see Rivera v County of Nassau, 83 AD3d 1032, 1033 [2011]; Redmond v City of White Plains, 77 AD3d 902 [2010]; Baker v City of New York, 44 AD3d 977, 979-980 [2007

2013The MTA defendants similarly demonstrated their prima facie entitlement to judgment as a matter of law in connection with the abuse of process cause of action by showing the absence of “ ‘an intent to do harm without excuse or justification’ ” (Ben-Zaken v City of New Rochelle, 273 AD2d 426, 427 [2000], quoting Curiano v Suozzi, 63 NY2d 113, 116 [1984]; see Rosen v Hanrahan, 2 AD3d 352, 353 [2003]; Berman v Silver, Forrester & Schisano, 156 AD2d 624, 625 [1989]).

2013The MTA defendants similarly demonstrated their prima facie entitlement to judgment as a matter of law in connection with the abuse of process cause of action by showing the absence of “ ‘an intent to do harm without excuse or justification’ ” (Ben-Zaken v City of New Rochelle, 273 AD2d 426, 427 [2000], quoting Curiano v Suozzi, 63 NY2d 113, 116 [1984]; see Rosen v Hanrahan, 2 AD3d 352, 353 [2003]; Berman v Silver, Forrester & Schisano, 156 AD2d 624, 625 [1989]).

2013Here, the MTA defendants demonstrated, prima facie, that probable cause existed to commence and maintain a criminal proceeding against the plaintiff for assaulting Todd, based upon Todd’s identification of the plaintiff as the perpetrator from a photo array, the plaintiffs admission to hitting someone in the face during the fight, and the fact that the plaintiff fit Todd’s description of the perpetrator, given before the photo array (see Rivera v County of Nassau, 83 AD3d 1032, 1033 [2011]; Redmond v City of White Plains, 77 AD3d 902 [2010]; Baker v City of New York, 44 AD3d 977, 979-980 [2007

2013Here, the MTA defendants demonstrated, prima facie, that probable cause existed to commence and maintain a criminal proceeding against the plaintiff for assaulting Todd, based upon Todd’s identification of the plaintiff as the perpetrator from a photo array, the plaintiffs admission to hitting someone in the face during the fight, and the fact that the plaintiff fit Todd’s description of the perpetrator, given before the photo array (see Rivera v County of Nassau, 83 AD3d 1032, 1033 [2011]; Redmond v City of White Plains, 77 AD3d 902 [2010]; Baker v City of New York, 44 AD3d 977, 979-980 [2007

2013The MTA defendants similarly demonstrated their prima facie entitlement to judgment as a matter of law in connection with the abuse of process cause of action by showing the absence of “ ‘an intent to do harm without excuse or justification’ ” (Ben-Zaken v City of New Rochelle, 273 AD2d 426, 427 [2000], quoting Curiano v Suozzi, 63 NY2d 113, 116 [1984]; see Rosen v Hanrahan, 2 AD3d 352, 353 [2003]; Berman v Silver, Forrester & Schisano, 156 AD2d 624, 625 [1989]).

2013The MTA defendants similarly demonstrated their prima facie entitlement to judgment as a matter of law in connection with the abuse of process cause of action by showing the absence of “ ‘an intent to do harm without excuse or justification’ ” (Ben-Zaken v City of New Rochelle, 273 AD2d 426, 427 [2000], quoting Curiano v Suozzi, 63 NY2d 113, 116 [1984]; see Rosen v Hanrahan, 2 AD3d 352, 353 [2003]; Berman v Silver, Forrester & Schisano, 156 AD2d 624, 625 [1989]).

2013With respect to the plaintiffs cross appeal, a prosecutor is entitled to absolute immunity for actions taken within the scope of his or her official duties in initiating and pursuing a criminal prosecution and in presenting the People’s case (see Imbler v Pachtman, 424 US 409 [1976]; Wyllie v District Attorney of County of Kings, 2 AD3d 714, 719 [2003]).

2013With respect to the plaintiffs cross appeal, a prosecutor is entitled to absolute immunity for actions taken within the scope of his or her official duties in initiating and pursuing a criminal prosecution and in presenting the People’s case (see Imbler v Pachtman, 424 US 409 [1976]; Wyllie v District Attorney of County of Kings, 2 AD3d 714, 719 [2003]).

2013Here, the MTA defendants demonstrated, prima facie, that probable cause existed to commence and maintain a criminal proceeding against the plaintiff for assaulting Todd, based upon Todd’s identification of the plaintiff as the perpetrator from a photo array, the plaintiffs admission to hitting someone in the face during the fight, and the fact that the plaintiff fit Todd’s description of the perpetrator, given before the photo array (see Rivera v County of Nassau, 83 AD3d 1032, 1033 [2011]; Redmond v City of White Plains, 77 AD3d 902 [2010]; Baker v City of New York, 44 AD3d 977, 979-980 [2007

2013Here, the MTA defendants demonstrated, prima facie, that probable cause existed to commence and maintain a criminal proceeding against the plaintiff for assaulting Todd, based upon Todd’s identification of the plaintiff as the perpetrator from a photo array, the plaintiffs admission to hitting someone in the face during the fight, and the fact that the plaintiff fit Todd’s description of the perpetrator, given before the photo array (see Rivera v County of Nassau, 83 AD3d 1032, 1033 [2011]; Redmond v City of White Plains, 77 AD3d 902 [2010]; Baker v City of New York, 44 AD3d 977, 979-980 [2007

2013Here, the MTA defendants demonstrated, prima facie, that probable cause existed to commence and maintain a criminal proceeding against the plaintiff for assaulting Todd, based upon Todd’s identification of the plaintiff as the perpetrator from a photo array, the plaintiffs admission to hitting someone in the face during the fight, and the fact that the plaintiff fit Todd’s description of the perpetrator, given before the photo array (see Rivera v County of Nassau, 83 AD3d 1032, 1033 [2011]; Redmond v City of White Plains, 77 AD3d 902 [2010]; Baker v City of New York, 44 AD3d 977, 979-980 [2007

2013Here, the MTA defendants demonstrated, prima facie, that probable cause existed to commence and maintain a criminal proceeding against the plaintiff for assaulting Todd, based upon Todd’s identification of the plaintiff as the perpetrator from a photo array, the plaintiffs admission to hitting someone in the face during the fight, and the fact that the plaintiff fit Todd’s description of the perpetrator, given before the photo array (see Rivera v County of Nassau, 83 AD3d 1032, 1033 [2011]; Redmond v City of White Plains, 77 AD3d 902 [2010]; Baker v City of New York, 44 AD3d 977, 979-980 [2007

2013The MTA defendants similarly demonstrated their prima facie entitlement to judgment as a matter of law in connection with the abuse of process cause of action by showing the absence of “ ‘an intent to do harm without excuse or justification’ ” (Ben-Zaken v City of New Rochelle, 273 AD2d 426, 427 [2000], quoting Curiano v Suozzi, 63 NY2d 113, 116 [1984]; see Rosen v Hanrahan, 2 AD3d 352, 353 [2003]; Berman v Silver, Forrester & Schisano, 156 AD2d 624, 625 [1989]).

2013The MTA defendants similarly demonstrated their prima facie entitlement to judgment as a matter of law in connection with the abuse of process cause of action by showing the absence of “ ‘an intent to do harm without excuse or justification’ ” (Ben-Zaken v City of New Rochelle, 273 AD2d 426, 427 [2000], quoting Curiano v Suozzi, 63 NY2d 113, 116 [1984]; see Rosen v Hanrahan, 2 AD3d 352, 353 [2003]; Berman v Silver, Forrester & Schisano, 156 AD2d 624, 625 [1989]).

2013The MTA defendants similarly demonstrated their prima facie entitlement to judgment as a matter of law in connection with the abuse of process cause of action by showing the absence of “ ‘an intent to do harm without excuse or justification’ ” (Ben-Zaken v City of New Rochelle, 273 AD2d 426, 427 [2000], quoting Curiano v Suozzi, 63 NY2d 113, 116 [1984]; see Rosen v Hanrahan, 2 AD3d 352, 353 [2003]; Berman v Silver, Forrester & Schisano, 156 AD2d 624, 625 [1989]).

2013The MTA defendants similarly demonstrated their prima facie entitlement to judgment as a matter of law in connection with the abuse of process cause of action by showing the absence of “ ‘an intent to do harm without excuse or justification’ ” (Ben-Zaken v City of New Rochelle, 273 AD2d 426, 427 [2000], quoting Curiano v Suozzi, 63 NY2d 113, 116 [1984]; see Rosen v Hanrahan, 2 AD3d 352, 353 [2003]; Berman v Silver, Forrester & Schisano, 156 AD2d 624, 625 [1989]).

2013In order to prevail on such a cause of action, a plaintiff must establish that (1) a criminal proceeding was commenced; (2) the criminal proceeding was terminated in favor of the accused; (3) the criminal proceeding lacked probable cause; and (4) the criminal proceeding was com menced out of actual malice (see Cantalino v Danner, 96 NY2d 391, 394 [2001]; Rivera v County of Nassau, 83 AD3d 1032, 1033 [2011]).

2013In order to prevail on such a cause of action, a plaintiff must establish that (1) a criminal proceeding was commenced; (2) the criminal proceeding was terminated in favor of the accused; (3) the criminal proceeding lacked probable cause; and (4) the criminal proceeding was com menced out of actual malice (see Cantalino v Danner, 96 NY2d 391, 394 [2001]; Rivera v County of Nassau, 83 AD3d 1032, 1033 [2011]).

2012Contrary to the contention of the MTA defendants, no fair interpretation of the evidence supports a finding that they were entirely free from negligence in the happening of the accident (see Lolik v Big V Supermarkets, 86 NY2d 744, 746 [1995]; Nicastro v Park, 113 AD2d 129, 133-134 [1985]).

2012Contrary to the contention of the MTA defendants, no fair interpretation of the evidence supports a finding that they were entirely free from negligence in the happening of the accident (see Lolik v Big V Supermarkets, 86 NY2d 744, 746 [1995]; Nicastro v Park, 113 AD2d 129, 133-134 [1985]).

2012Contrary to the contention of the MTA defendants, no fair interpretation of the evidence supports a finding that they were entirely free from negligence in the happening of the accident (see Lolik v Big V Supermarkets, 86 NY2d 744, 746 [1995]; Nicastro v Park, 113 AD2d 129, 133-134 [1985]).

2012Contrary to the contention of the MTA defendants, no fair interpretation of the evidence supports a finding that they were entirely free from negligence in the happening of the accident (see Lolik v Big V Supermarkets, 86 NY2d 744, 746 [1995]; Nicastro v Park, 113 AD2d 129, 133-134 [1985]).

2025The evidence submitted by the MTA defendants contained conflicting versions of the accident and failed to eliminate triable issues of fact as to whether Thomas negligently caused or contributed to the accident by abruptly stopping his vehicle for no apparent reason ( see Tutrani v County of Suffolk , 10 NY3d at 907-908 ; Rossnagel v Kelly , 177 AD3d 650 , 651).

2015A jury question is presented — namely, whether Passos’s collision with the DiPaoli vehicle created a foreseeable danger that the MTA defendants would also have to brake aggressively, increasing the risk of a second rear end collision (Tutrani, 10 NY3d at 908 ; Vavoulis, 43 AD3d at 1156 ; Carhuayano v J&R Hacking, 28 AD3d 413, 414-415 [2006]; Schmidt v Guenther, 103 AD3d 1162, 1163 [4th Dept 2013]).

2016Since the MTA defendants were negligent, the right of the plaintiffs, as innocent passengers, to an award of summary judgment on the issue of liability against the MTA defendants is not barred or limited by the existence of any unresolved questions as to the *714 apportionment of fault, if any, between the MTA defendants and the Podmore defendants (see Brabham v City of New York, 105 AD3d 881 [2013]; Medina v Rodriguez, 92 AD3d 850 [2012]).

2015In addition, the MTA defendants’ contention that an award of sum *1093 mary judgment was premature because of outstanding disclosure is without merit, since they failed to demonstrate “that discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant” (Williams v Spencer-Hall, 113 AD3d 759, 760 [2014]; see Brabham v City of New York, 105 AD3d 881, 883 [2013]).

2012That the bus came to a sudden stop was insufficient to raise a triable issue of fact (see Francisco v Schoepfer, 30 AD3d 275, 276 [2006]).

2012That the bus came to a sudden stop was insufficient to raise a triable issue of fact.” (Id. at 610 [citation omitted], citing Francisco, 30 AD3d 275 .) Given that Androvic is the most recent precedent on this issue that follows the trend of the majority of cases in the First Department, Daddario’s testimony that the Access-A-Ride vehicle suddenly stopped is not, in itself, sufficient to rebut the presumption of negligence.