Opinion
2022–05826 Index No. 714450/16
11-08-2023
Josefina JIMENEZ, respondent, v. NEW YORK CITY TRANSIT AUTHORITY, et al., appellants.
Anna J. Ervolina, Brooklyn, NY (Timothy J. O'Shaughnessy of counsel), for appellants. Nicholas Rose, PLLC (Law Firm of Vaughn, Weber & Prakope, PLLC, Mineola, NY [John A. Weber IV ], of counsel), for respondent.
Anna J. Ervolina, Brooklyn, NY (Timothy J. O'Shaughnessy of counsel), for appellants.
Nicholas Rose, PLLC (Law Firm of Vaughn, Weber & Prakope, PLLC, Mineola, NY [John A. Weber IV ], of counsel), for respondent.
BETSY BARROS, J.P., JOSEPH J. MALTESE, DEBORAH A. DOWLING, HELEN VOUTSINAS, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Joseph Risi, J.), dated June 30, 2022. The order, insofar as appealed from, denied those branches of the defendants’ motion which were for summary judgment dismissing the complaint insofar as asserted against the defendants New York City Transit Authority, MTA Bus Company, and Barbara Washington Smith.
ORDERED that the appeal by the defendant Metropolitan Transportation Authority is dismissed, as that defendant is not aggrieved by the order appealed from (see CPLR 5511 ; Mixon v. TBV, Inc., 76 A.D.3d 144, 156–157, 904 N.Y.S.2d 132 ); and it is further, ORDERED that the order is reversed insofar as appealed from by the defendants New York City Transit Authority, MTA Bus Company, and Barbara Washington, on the law, and those branches of the defendants’ motion which were for summary judgment dismissing the complaint insofar as asserted against the defendants New York City Transit Authority, MTA Bus Company, and Barbara Washington Smith are granted; and it is further,
ORDERED that one bill of costs is awarded to the defendants New York City Transit Authority, MTA Bus Company, and Barbara Washington Smith.
The plaintiff commenced this action to recover damages for injuries she allegedly sustained when she fell while on a bus allegedly owned by the defendants New York City Transit Authority, MTA Bus Company, and Metropolitan Transportation Authority. The defendants moved for summary judgment dismissing the complaint, contending, inter alia, that the movement of the bus that allegedly caused the plaintiff to fall was neither unusual nor violent. The Supreme Court, among other things, denied those branches of the motion which were for summary judgment dismissing the complaint insofar as asserted against the defendants New York City Transit Authority and MTA Bus Company, and the defendant Barbara Washington Smith, the operator of the bus (hereinafter collectively the defendants). The defendants appeal.
"To establish a prima facie case of negligence against a common carrier for injuries sustained by a passenger as a result of the movement of the vehicle, the plaintiff must establish that the movement consisted of a jerk or lurch that was ‘unusual and violent’ " ( Golub v. New York City Tr. Auth., 40 A.D.3d 581, 582, 836 N.Y.S.2d 197, quoting Urquhart v. New York City Tr. Auth., 85 N.Y.2d 828, 830, 623 N.Y.S.2d 838, 647 N.E.2d 1346 ; see Tomaszycki v. New York City Tr. Auth., 194 A.D.3d 977, 978, 144 N.Y.S.3d 369 ). "[A] plaintiff may not satisfy that burden of proof by merely characterizing the actions of the bus as unusual and violent" ( Gordon v. New York City Tr. Auth., 206 A.D.3d 977, 977–978, 168 N.Y.S.3d 858 ; see Urquhart v. New York City Tr. Auth., 85 N.Y.2d at 830, 623 N.Y.S.2d 838, 647 N.E.2d 1346 ; Mastrantonakis v. Metropolitan Transp. Auth., 170 A.D.3d 823, 824, 96 N.Y.S.3d 250 ). "In seeking summary judgment dismissing the complaint, however, common carriers have the burden of establishing, prima facie, that the movement of the bus was not unusual and violent" ( Gordon v. New York City Tr. Auth., 206 A.D.3d at 978, 168 N.Y.S.3d 858 ; see Perez v. Doe, 210 A.D.3d 1028, 1029, 179 N.Y.S.3d 680 ; Orji v. MTA Bus Co., 204 A.D.3d 1027, 1028, 167 N.Y.S.3d 536 ).
Here, the defendants established their prima facie entitlement to judgment as a matter of law by submitting, inter alia, a transcript of the plaintiff's testimony at a statutory hearing pursuant to General Municipal Law § 50–h and the bus camera video footage of the subject incident, which demonstrated that the movement of the bus was not "unusual or violent" or of a class different from "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 Perez v. Doe, 210 A.D.3d at 1029, 179 N.Y.S.3d 680 ; Gordon v. New York City Tr. Auth., 206 A.D.3d at 977–978, 168 N.Y.S.3d 858 ; Cui Fang Li v. New York City Tr., 155 A.D.3d 938, 63 N.Y.S.3d 894 ). In opposition, the plaintiff failed to raise a triable issue of fact.
Accordingly, the Supreme Court should have granted those branches of the defendants’ motion which were for summary judgment dismissing the complaint insofar as asserted against them.
BARROS, J.P., MALTESE, DOWLING and VOUTSINAS, JJ., concur.