Opinion
2012-05-1
Lurla L. BURKE, respondent, v. MTA BUS COMPANY, appellant, et al., defendant.
Sullivan & Brill, LLP, New York, N.Y. (Adam A. Khalil and Joseph F. Sullivan of counsel), for appellant. *818 Mallilo & Grossman, Flushing, N.Y. (Francesco Pomara, Jr., and John S. Manessis of counsel), for respondent.
Sullivan & Brill, LLP, New York, N.Y. (Adam A. Khalil and Joseph F. Sullivan of counsel), for appellant. *818 Mallilo & Grossman, Flushing, N.Y. (Francesco Pomara, Jr., and John S. Manessis of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant MTA Bus Company appeals from an order of the Supreme Court, Queens County (Markey, J.), dated May 10, 2011, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it.
ORDERED that the order is reversed, on the law, with costs, and the motion of the defendant MTA Bus Company for summary judgment dismissing the complaint insofar as asserted against it is granted.
“To establish a prima facie case of negligence against a common carrier for injuries sustained by a passenger when the vehicle comes to a halt, the plaintiff must establish that the stop caused a jerk or lurch that was unusual and violent. Proof that the stop was unusual or violent must consist of more than a mere characterization of the stop in those terms by the plaintiff” ( Urquhart v. New York City Tr. Auth., 85 N.Y.2d 828, 829–830, 623 N.Y.S.2d 838, 647 N.E.2d 1346 [citation and internal quotation marks omitted]; see Black v. County of Dutchess, 87 A.D.3d 1097, 1098, 930 N.Y.S.2d 64). The evidence must establish that the force of the stop was “of a different class than the jerks and jolts commonly experienced in city bus travel and, therefore, attributable to the negligence of [the] defendant” ( Urquhart v. New York City Tr. Auth., 85 N.Y.2d at 830, 623 N.Y.S.2d 838, 647 N.E.2d 1346; see Guadalupe v. New York City Tr. Auth., 91 A.D.3d 716, 717, 936 N.Y.S.2d 314). Here, the defendant MTA Bus Company (hereinafter the defendant) submitted the plaintiff's deposition testimony in support of its motion for summary judgment. That testimony was sufficient to establish, prima facie, that the stop was not “unusual or violent” and of a “different class than the jerks and jolts commonly experienced in city bus travel” ( Urquhart v. New York City Tr. Auth., 85 N.Y.2d at 830, 623 N.Y.S.2d 838, 647 N.E.2d 1346; see Guadalupe v. New York City Tr. Auth., 91 A.D.3d at 717, 936 N.Y.S.2d 314; Rayford v. County of Westchester, 59 A.D.3d 508, 509, 873 N.Y.S.2d 187; Golub v. New York City Tr. Auth., 40 A.D.3d 581, 582, 836 N.Y.S.2d 197). In opposition, the plaintiff failed to raise a triable issue of fact ( see Guadalupe v. New York City Tr. Auth., 91 A.D.3d at 717, 936 N.Y.S.2d 314). Accordingly, the Supreme Court should have granted the defendant's motion for summary judgment dismissing the complaint insofar as asserted against it ( id.).
The parties' remaining contentions have been rendered academic in light of our determination.