Opinion
Index No. 902087-17
06-04-2024
Faige M. Lans AND DANIELLA LANS, Plaintiffs, v. Jean L. Farnam, ANNE M. FARNAM, TIMOTHY FARNAM, CAPITAL DISTRICT TRANSPORTATION AUTHORITY, TOWN OF BETHLEHEM, COUNTY OF ALBANY AND NICOLE VACCARINO, Defendants.
O'Connor, O'Connor, Bresee & First, PC Elizabeth J. Grogan, Esq. Attorneys for Defendant Capital District Transportation Authority LaFave, Wein & Frament, PLLC Paul H. Wein, Esq. Attorneys for Plaintiffs Alan B. Brill & Associates Alan B. Brill, Esq. Attorney for Defendant Vaccarino
Unpublished Opinion
O'Connor, O'Connor, Bresee & First, PC Elizabeth J. Grogan, Esq. Attorneys for Defendant Capital District Transportation Authority
LaFave, Wein & Frament, PLLC Paul H. Wein, Esq. Attorneys for Plaintiffs
Alan B. Brill & Associates Alan B. Brill, Esq. Attorney for Defendant Vaccarino
Denise A. Hartman, J.
In this personal injury action, defendant Capital District Transportation Authority (CDTA) moves for summary judgment dismissing the amended complaint (Motion #2). Plaintiffs Faige M. Lans and Daniella Lans oppose CDTA's motion and cross-move for partial summary judgment on the issue of CDTA's liability (Motion #3). Defendant Nicole Vaccarino opposes CDTA's motion. CDTA opposes plaintiffs' cross-motion. For the reasons that follow, CDTA's motion is granted in part and denied in part, and plaintiffs' cross-motion is denied in its entirety.
Background
Plaintiff Faige M. Lans (Faige) and her mother, plaintiff Daniella Lans, commenced this negligence action to recover damages for personal injuries allegedly sustained when Faige was struck by a motor vehicle owned and operated by Jean, Anne, and Timothy Farnam (the Farnams) on January 21, 2016, while attempting to cross Delaware Avenue to attend music lessons at Magic of Music in the Town of Bethlehem, County of Albany, after exiting a CDTA bus.
The action was originally commenced in Supreme Court, Orange County, but was transferred on consent to Albany County on March 15, 2017 (see NYSCEF Doc No. 16).
Plaintiffs originally brought this action against CDTA, the Town of Bethlehem, the County of Albany, and the Farnams, alleging two causes of action for negligence and loss of services (see NYSCEF Doc No. 1). Plaintiffs then filed an amended complaint that added Nicole Vaccarino (Vaccarino) as a defendant, who plaintiffs allege was the operator of a motor vehicle that had stopped behind the CDTA bus and waived Faige across the street (see NYSCEF Doc No. 43).
As relevant, all defendants answered the complaint and/or amended complaint, raised various affirmative defenses, and asserted cross-claims against each other for contribution and/or indemnification (see NYSCEF Doc Nos. 9, 11, 13, 49, 97, 99). During discovery, the action was discontinued on stipulation as to the County of Albany (see NYSCEF Doc No. 46), and the Farnams (see NYSCEF Doc No. 91). At the completion of discovery, the Court issued a letter order on December 8, 2023, following a conference with counsel for plaintiff, CDTA, and Vaccarino, directing, among other things, that "[a]ny motion for summary judgment as to liability may be made by February 2, 2024. Opposition is due March 8, 2024. Reply is due March 22, 2024" (see NYSCEF Doc No. 96).
On February 2, 2024, CDTA filed its present motion for summary judgment seeking dismissal of plaintiff's amended complaint (Motion #2) (see NYSCEF Doc No. 100). CDTA argues that it satisfied the general duty owed to plaintiffs as a common carrier by depositing Faige at a bus stop from which she was able to safely alight from the bus to a marked sidewalk lane which connected to a crosswalk approximately 350 feet away. CDTA argues that, although Faige chose to cross the street mid-block and rely on Vaccarino's alleged act of waiving her into traffic, she had a safe alternative means of crossing Delaware Avenue and her independent decision to cross mid-block constitutes a superseding intervening cause that relieves CDTA of liability. CDTA further argues that it owed no special duty to Faige because it had no knowledge that she required special assistance in using its services and no such need was readily apparent. CDTA contends that, even accepting as true plaintiffs' contention that Faige required the services of a travel training person the first time she rode a CDTA bus, she independently used CDTA's bus services extensively since then without incident or the need for further special assistance prior to the date of the accident.
On March 6, 2024, plaintiffs filed opposition to CDTA's motion and a cross-motion for partial summary judgment as to CDTA's liability (see NYSCEF Doc No. 119). Plaintiffs oppose CDTA's motion, first arguing that CDTA's motion is untimely because it was made more than 120 days after plaintiffs filed note of issue. On the merits, plaintiffs argue that CDTA breached its general duty of care as a common carrier because the bus stop at issue was located in the middle of a block 350 feet from the nearest crosswalk, where only an uncurbed sidewalk that traversed several driveways existed, such that it was foreseeable that patrons would attempt to cross in the middle of Delaware Avenue subjecting them to an unreasonable risk of harm.
Further, plaintiffs argue that CDTA breached the special duty of care owed to Faige by failing to provide her with assistance and/or individualized instruction in leaving the bus based on her diagnosis of Aspergers Syndrome, of which CDTA had been made aware. In particular, plaintiffs aver, signage on CDTA buses which instructed patrons not to cross in front of its buses placed Faige at a heightened risk of harm because her Aspergers diagnosis led her to follow such directions literally. Plaintiffs argue that, had the bus driver been made aware of Faige's diagnosis, she could have instructed Faige to disregard the signage and cross in front of the bus.
In reply, CDTA opposes plaintiffs' cross-motion both as untimely and on the merits and contends that its own motion was timely in accordance with the Court's December 8, 2023 motion schedule (see NYSCEF Doc No. 141). And CDTA proffers the expert affidavit of professional civil engineer and accredited accident reconstructionist Timothy Reilly (Reilly), who opined, among other things, that the location of the bus stop at issue afforded patrons a safe means of leaving the area.
In their reply, plaintiffs reassert their arguments as to the merits of their cross-motion and opposition and contend that the Court should disregard CDTA's expert's affidavit as having been filed untimely for the first time in reply to their cross-motion. Alternatively, plaintiffs contend that the Court should limit any consideration given to Reilly's affidavit as opposition to plaintiffs' cross-motion.
Vaccarino joins plaintiffs' opposition to CDTA's motion for summary judgment but takes no position as to plaintiffs' cross-motion except to the extent plaintiffs' arguments support her cross-claims against CDTA (see NYSCEF Doc No. 131). Vaccarino argues that questions of fact exist as to whether CDTA breached its general duty as a common carrier to place the bus stop at a safe location.
Analysis
"On a motion for summary judgment, the movant must establish its prima facie entitlement to judgment as a matter of law by presenting competent evidence that demonstrates the absence of any material issue of fact. Only when the movant satisfies its obligation does the burden shift to the nonmovant to present evidence demonstrating the existence of a triable issue of fact" (Aretakis v Cole's Collision, 165 A.D.3d 1458, 1459 [3d Dept 2018] [internal quotation marks and citations omitted]; see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]; Durr v Capital Dist. Transportation Auth., 198 A.D.3d 1238, 1239 [3d Dept 2021]). "Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" (Alvarez, 68 N.Y.2d at 324 [citation omitted]). And "[o]n such a motion, the facts must be viewed in the light most favorable to the [nonmovant], and every available inference must be drawn in the [nonmovant's] favor" (De Lourdes Torres v Jones, 26 N.Y.3d 742, 763 [2016] [citations omitted]).
The Court Exercises Its Discretion to Reach the Merits of Plaintiffs'Untimely Cross-Motion
As an initial matter, the Court's December 8, 2023 letter order directed that "[a]ny motion for summary judgment as to liability may be made by February 2, 2024" (NYSCEF Doc No. 96 at 1). The letter order further memorialized that the motion schedule was made on consent of all counsel (see id.). CDTA timely filed its motion for summary judgment on February 2, 2024 (see NYSCEF Doc No. 100). Plaintiffs' cross-motion for summary judgment as to CDTA's liability was filed with their opposition on March 6, 2024, beyond the February 2, 2024 deadline for making summary judgment motions (see NYSCEF Doc No. 119). And plaintiffs have proffered no good cause for the untimely filing of their cross-motion. But, for the reasons that follow, the Court will consider the merits of plaintiffs' untimely cross-motion.
"'A cross motion for summary judgment made after the expiration of the deadline for making dispositive motions may be considered by the court, even in the absence of good cause, where a timely motion for summary judgment was made seeking relief nearly identical to that sought by the cross motion'" (see Reutzel v Hunter Yes, Inc., 135 A.D.3d 1123, 1124 [3d Dept 2016] [brackets omitted], quoting Alonzo v Safe Harbors of the Hudson Hous. Dev. Fund Co., Inc., 104 A.D.3d 446, 448-449 [1st Dept 2013]; see Alexander v Gordon, 95 A.D.3d 1245, 1246-1247 [2d Dept 2012]). Here, CDTA's timely motion for summary judgment seeking dismissal of plaintiffs' amended complaint and plaintiffs' untimely cross-motion involves essentially identical issues-namely, CDTA's liability for Faige's injuries. Accordingly, under the circumstances, the Court will address the merits of plaintiffs' cross-motion.
The Court Exercises Its Discretion to Consider CDTA's Expert Affidavit in Support of Its Motion
CDTA did not proffer its expert affidavit in support of its motion; rather, it chose to submit this evidence for the first time in opposition to plaintiff's cross-motion and opposition. CDTA proffered no reason for its belated submission of their expert proof, notwithstanding the protracted nature of this action and the nearly two months afforded by the stipulated filing schedule for summary judgment motions. But plaintiffs had an opportunity to respond to the belated expert opinion, which is pertinent to the nearly identical issues raised by both the motion and cross-motion. Under these circumstances, the Court exercises its discretion to depart from the general rule that "[t]he function of reply papers is to address arguments made in opposition to the position taken by the movant and not to permit the movant to introduce new arguments in support of, or new grounds or evidence for the motion" (Matter of Kennelly v Mobius Realty Holdings LLC, 33 A.D.3d 380, 381 [1st Dept 2006] [internal quotation marks, brackets, and citation omitted]). In any event, as set forth below, CDTA's belated expert affidavit is neither necessary nor dispositive of either motion.
Questions of Fact Preclude Summary Judgment on Plaintiffs' Claim that CDTA Breached Its General Duty of Care
Questions of fact exist as to CDTA's liability for the alleged breach of its general duty as a common carrier. It is well-established that "[a] common carrier owes a duty to an alighting passenger to stop at a place where the passenger may safely disembark and leave the area" (Miller v Fernan, 73 N.Y.2d 844, 846 [1988]). As the Third Department has observed,
the case law obligates the [common] carrier, in discharging passengers, to provide a reasonably safe point from which the passengers can alight and walk away without incurring a risk of injury. After all, the passenger has no choice but to exit through the bus doors. Beyond that point, however, when it is a passenger's individual choice which directs where he or she will walk, then common sense, logic and public policy simply do not support extending a duty of care to the [common] carrier to insure that once the passenger has safely departed, the city's streets or sidewalks will be absolutely free from defect. Only when the placement of the bus dictates that the passenger navigate a treacherous path should the [common] carrier be held liable for any injuries proximately caused by that hazardous condition.(Connolly v Rogers, 195 A.D.2d 649, 650-651 [3rd Dept 1993] [internal quotation marks and citation omitted]). In assessing whether the plaintiff had a safe path from which to leave the area, courts consider not only the safety of the path actually taken by the plaintiff, but also "'whether there was any safe alternative route which [the] plaintiff could have taken'" (Connolly, 195 A.D.2d at 651, 652, quoting Miller, 73 N.Y.2d at 846), and whether such safe alternative was "reasonably accessible to [the] plaintiff[]" (Connolly, 195 A.D.2d at 652). "Whether [a] common carrier has breached its duty is generally a factual question to be resolved by a jury" (Kearns v Adirondack Trailways, Inc., 59 A.D.3d 774, 774 [3d Dept 2009]). And "[t]he complaint of a passenger injured while leaving the area where the bus stopped for disembarkation will not be dismissed on a summary judgment motion if there is a factual dispute over whether there was any safe alternative route which [the] plaintiff could have taken" (Connolly, 195 A.D.2d at 651 [internal quotation marks and citation omitted]).
It is undisputed that, at all times relevant to plaintiffs' claims, CDTA was a common carrier that had exclusive control over the placement of its bus stops. CDTA's general duty of care continued upon Faige exiting its bus (cf. Rios v City of New York, 33 A.D.3d 780, 781 [2d Dept 2006]). And no party argues that crossing Delaware Avenue mid-block was a safe path. Accordingly, the issue distills to whether there existed any alternative route that was reasonably safe and accessible by which Faige could have left the bus stop to reach her destination.
CDTA's photographs, captured by Google in October 2014 and September 2016, depict the bus stop and surrounding area as it existed on the date of the accident in January 2016. These photos show that the bus stop was located on a portion of Delaware Avenue consisting of two lanes separated by double-yellow lines. Faige's ultimate destination, Magic of Music, can be seen diagonally across Delaware Avenue next to the intersection of Delaware Avenue and Becker Terrace. Looking beyond Becker Terrace in the direction as that taken by Faige's bus on the day of the accident is another intersection. It is undisputed that a marked crosswalk existed near that intersection approximately 350 to 360 feet from the bus stop Faige used. CDTA's video evidence from inside the CDTA bus depicts this crosswalk approximately two minutes after Faige is seen exiting the bus. The video shows Faige alighting from the bus at approximately 3:32 p.m. in relatively bright, clement conditions. And CDTA proffers a map image of the location, which shows another bus stop on the eastbound side of Delaware Avenue near the intersection of Delaware Avenue and Grover Street, which is located approximately 490 feet before the bus stop Faige used. CDTA posits that this also provided Faige with a safe alternative route.
CDTA also proffers a Google Maps image of the area showing the intersection of Delaware Avenue and Becker Terrace and numerous marked crosswalks (see NYSCEF Doc No. 112). Because CDTA's Google Maps image bears the date 2024, and it is undisputed that this area was significantly altered since the time of the accident, this exhibit is of limited value. As is CDTA's exhibit consisting of a screen shot from February 2, 2024, of Delaware Avenue and Cherry Avenue.
CDTA's Google Street View photographs further show an uncurbed, marked sidewalk lane on the same side of the street as the bus stop where Faige alighted from the bus. This sidewalk lane has white lines painted on each side and is separated from the road by telephone poles and, in some spots, strips of grass (see NYSCEF Doc No. 116). The paved sidewalk lane traverses several driveways on Delaware Avenue and appears to extend eastward on Delaware Avenue to the crosswalk at the next intersection.
In addition, CDTA proffers a report from the Federal Transit Administration which consists of findings from numerous studies, including, as relevant, a comparison of the advantages and disadvantages to placing bus stops at the near-side or far-side of crosswalks or mid-block (see U.S. Dept. of Transp., Federal Transit Administration, Stops, Spacing, Location and Design, available at https://www.transit.dot.gov/research-innovation/stops-spacing-location-and-design [last updated Dec. 6, 2015] [FTA report]). The FTA report concludes that "far-side stops are preferable," but notes that "other types of stops may be justified in certain situations" and observes both advantages and disadvantages to mid-block bus stop placement (id.).
CDTA's evidence establishes that the designated bus stop Faige used on the day of the accident was adjacent to a marked sidewalk lane which connected to a marked crosswalk approximately 350 to 360 feet east, and that another bus stop was located approximately 490 feet away near an intersection. Faige alighted from the bus in clement, daylight conditions. And CDTA has shown that mid-block placement of bus stops has certain advantages and may be justified. The affidavit of CDTA's expert, Reilly, buttresses CDTA's argument that this evidence demonstrates the existence of an alternative route which was both reasonably safe and accessible to Faige. CDTA has arguably met its burden of establishing prima facie that it did not breach its general duty of care (cf. Lockhart v Adirondack Tr. Lines, 289 A.D.2d 686, 688-689 [3d Dept 2001]).
Reilly's affidavit is of limited probative value given the conclusory nature of his assertions as to the safety and propriety of the placement of the bus stop and crosswalk at issue, and its lack of foundation as to standards or bases upon which his opinions are premised (see Ramos v Howard Indus., Inc., 10 N.Y.3d 218, 224 [2008]; Diaz v New York Downtown Hosp., 99 NY 542, 544 [2002]).
Regardless, in opposition to CDTA's motion, plaintiffs raise questions of fact as to whether the bus stop afforded Faige a reasonably accessible and safe alternative. Plaintiffs proffer the affidavit and report of their expert, Bradford Silver (Silver), the president of North East Collision Analysis and Safety Associates, who opines that "the sidewalk at the time of the accident was actually an extension of the paved road surface with no curbs in the area of impact on either side of the roadway" and traversed numerous driveways (NYSCEF Doc No. 122 at ¶ 5). And Silver opines that the nearest crosswalk being located 350 to 360 feet away was "too distant" to provide a safe means of leaving the bus stop because it was "foreseeable" and "expected" that patrons using this stop "would eventually cross in the middle of a very busy highway and at times at a very busy time of day" (id. at ¶ 4). Moreover, Silver notes that, although the crosswalk located approximately 350 to 360 feet from the stop would allow patrons to cross Delaware Avenue, he points out that, at the time of the accident, that crosswalk was positioned approximately 70 feet past Becker Terrace. Silver also notes in his report that, at the time of the accident, there was no pedestrian crosswalk at Becker Terrace. Therefore, even if Faige had chosen to use the nearest marked crosswalk, she still would have had to traverse Becker Terrace which had no pedestrian crosswalk at the time of the accident. Accordingly, plaintiffs have raised questions of fact as to whether, given the distance of 350 to 360 feet, the crosswalk was reasonably accessible to patrons departing the bus at that particular stop and whether the alternative route was in fact safe given the nature of the sidewalk area, the nearest crosswalk's proximity to Becker Terrace and the lack of any crosswalk at the Becker Terrace intersection at the time of the accident.
Plaintiffs' evidence of post-accident changes to the bus stop location and pedestrian patterns is not competent proof of liability. "[P]roof of subsequent remedial measures is generally inadmissible to prove negligence" and plaintiffs advance no reason for the Court to make an exception here (Roque v State of New York, 199 A.D.3d 1092, 1099 [3d Dept 2021]).
Plaintiffs have also raised a question of fact concerning CDTA's alternative argument regarding the existence of another purported crosswalk, which CDTA states was located "150 feet or so" from a bus stop near the intersection of Delaware Avenue and Grover Street on the same bus route used by Faige on the day of the accident (NYSCEF Doc No. 101 at ¶ 42; see NYSCEF Doc No.102 at 6). In reply to CDTA's opposition, plaintiffs argue that characterization of this area as a "crosswalk is... misleading" because it was unmarked, and contend that the distance between the prior bus stop and the unmarked crosswalk is not established by the record before the Court (NYSCEF Doc No. 151 at ¶ 20). The image proffered by CDTA establishes the existence of a bus stop near the intersection at Delaware Avenue and Grover Street, which was approximately 490 feet from the bus stop Faige used on the day of the accident (see NYSCEF Doc No. 115). But, this image is undated and does not depict any marked pedestrian crosswalks at that intersection (see id.). And the Google Maps image of the area CDTA proffered does not show a marked crosswalk at that intersection and bears the date 2024 (see NYSCEF Doc No. 114)-long after the date of the accident following many changes to this area. Plaintiffs have, therefore, established the existence of a question of fact as to whether this alternative bus stop and/or intersection afforded Faige a safe alternative path.
Although plaintiffs' evidence raises a question of fact in opposition to CDTA's motion, it does not establish prima facie entitlement to judgment as a matter of law on the issue of CDTA's liability for breach of its general duty of care. Silver points to no requirement, legal obligation, or other standard in support of his opinion that the bus stop past Becker Terrace was "too distant." And plaintiffs' own evidence, namely the deposition testimony of CDTA's safety manager and a CDTA infrastructure planner, establishes that, although consideration is given to whether a particular location for a bus stop has a crosswalk, the presence of one is not dispositive in determining the appropriateness of a bus stop because not every location allows for placement at a crosswalk (NYSCEF Doc No. 124 at 16; see NYSCEF Doc No. 125 at 15). Nor have plaintiffs established through competent evidence that, as a matter of law, the nature of the sidewalk caused it to be dangerous. As plaintiffs have failed to establish a prima facie case as to their cross-motion, the Court need not determine whether CDTA has raised a triable issue of fact in opposition.
In sum, questions of fact exist as to whether the distance and nature of the sidewalk between the bus stop and nearest marked crosswalk, as well as the nature of the intersection near Grover Street, were reasonably accessible and safe alternative paths, such questions must be answered by the jury. And because "there is a factual dispute over whether there was any safe alternative route which [Faige] could have taken" (Connolly, 195 A.D.2d at 651), summary judgment is not appropriate. Consequently, the branch of CDTA's motion for summary judgment as to the issue of its liability for breach of its general duty of care is denied, and plaintiffs' cross-motion as to CDTA's liability concerning its general duty of care is denied.
Questions of Fact Preclude Summary Judgment on CDTA's Argument that Faige's Actions Constitute a Superseding Intervening Act
Nor can the Court, on the record before it, conclude that Faige's act of crossing mid-block constitutes a superseding intervening act. "An intervening act may be a superseding act which breaks the causal nexus if it is extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant's conduct" (Morrison v Hindley, 221 A.D.2d 691, 694 [3d Dept 1995]; see Myers v Home Energy Performance by Halco, 188 A.D.3d 1327, 1328 [3d Dept 2020]). Silver's affidavit and the FTA report proffered by CDTA suggest that it is foreseeable that patrons disembarking at mid-block bus stops will cross in the middle of the street, as Faige did here. Accordingly, CDTA has not established that Faige's decision to cross mid-block was either extraordinary under the circumstances or unforeseeable in the normal course of events. Further, CDTA had exclusive control over the placement of its bus stops and chose to place the subject bus stop mid-block in an area located approximately 350 to 360 feet from the nearest marked crosswalk. In light of the evidence before the Court, it cannot be said that Faige's choice to cross mid-block was wholly independent of CDTA's conduct of selecting the location of this bus stop. Consequently, this branch of CDTA's motion for summary judgment is denied.
CDTA is Entitled to Summary Judgment Dismissing So Much of Plaintiffs' Amended Complaint Alleging that CDTA Owed Faige a Special Duty of Care Due to Her Asperger's Diagnosis.
"[A] common carrier is subject to the same duty of care as any other potential tortfeasor-reasonable care under all of the circumstances of the particular case" (Bethel v New York City Tr. Auth., 92 N.Y.2d 348, 356 [1998]). And, as to a disabled passenger, "a common carrier has a duty to use such care or to give such assistance for [their] safety and welfare as is reasonably required by the passenger's disability and the existing circumstances, provided that the carrier's employee knew or should reasonably have known of the passenger's disability" (Houston v New York City Tr. Auth., 143 A.D.3d 860, 861-862 [2d Dept 2016]). Such a special duty may arise where a patron has a "significant, visible disability or handicap and who, by reason of either sickness, age or physical infirmity, require particular attention or consideration" (Lewis v Metro. Transp. Auth., 99 A.D.2d 246, 251 [1st Dept 1984], affd 64 N.Y.2d 670 [1984]).
Faige's General Municipal Law § 50-h hearing testimony establishes that Faige did not require any special assistance in using CDTA's buses. Faige testified that the first time she used a CDTA bus she was accompanied by a "travel training person" (NYSCEF Doc No. 102 at 24). Such travel training, Faige testified, consisted of an individual boarding and un-boarding the bus with her and "show[ing] her where to get off, what to do" (id. at 25). Faige testified that the travel trainer was from an organization called "Community Hab" but could not remember that individual's name (id. at 26). But she acknowledged that she subsequently rode the bus independently and without any assistance "at least once a week" for months before her accident (id. at 25; see id. at 26). She also testified that she had independently used CDTA buses "two or three times a week" to attend music lessons at Magic of Music, for a total of "[c]lose to 30 times" before the accident (id. at 27). Further, the video footage from the day of the accident shows Faige board and alight from the bus independently with no notable difficulty or any visible limitations. The Court concludes that CDTA has established prima facie entitlement to summary judgment dismissing the branch of plaintiffs' amended complaint concerning its alleged liability for breach of a special duty of care.
Plaintiffs have failed to establish a prima facie case or raise a triable issue of fact in opposition. In her affidavit Daniella Lans states that "it is [her] understanding that" a group known as "Living Resources [] set up a meeting with [CDTA] to meet with Faige to determine if [she] would need travel training," and the "person at [CDTA] who assessed Faige told [her] that she did not need travel training and was safe to use CDTA on her own" (NYSCEF Doc No. 121 at ¶ 2). And Daniella Lans states, Faige's "condition and her need for additional assistance was never discussed with the bus driver who was driving the bus" on the date of the accident (id. at 4). But Daniella Lans did not attend this purported meeting, so her statements in this regard are sourced in hearsay. They are not supported by other competent evidence. Accordingly, such evidence is insufficient to carry plaintiffs' burden as to its cross-motion (see Craft v Whittmarsh, 83 A.D.3d 1271, 1273 [3d Dept 2011] [citation omitted]), or to defeat CDTA's prima facie showing (see generally Alvarez, 68 N.Y.2d at 324). In any event, her representations concerning Faige's need for travel training directly contradict Faige's General Municipal Law § 50-h hearing testimony and fail to establish that CDTA personnel had reason to believe Faige required special assistance.
Similarly, plaintiffs' contention that CDTA should have taken steps to provide Faige with contrary instructions to its generally applicable signage advising passengers not to cross in front of the bus are not supported by competent evidence (see NYSCEF Doc No. 144). Plaintiffs posit that, had the bus driver been made aware of and/or trained to assist individuals with autism, she would have directed Faige to cross in front of the bus. This contention is based entirely on Daniella Lans statement that Faige's autism diagnosis causes her to "without fail follow[] instructions" (NYSCEF Doc No 121 at ¶ 3). But plaintiffs fail to establish Daniella Lans as a medical expert qualified to discuss the specific attributes of Faige's Asperger's diagnosis. And Silver's opinion that, because Delaware Avenue is a two-lane road, it was an "impossibility" that a car would attempt to pass the stopped bus, thereby requiring the bus driver to instruct Faige to cross in front is speculative and insufficient to raise a triable issue of fact. Consequently, the branch of CDTA's motion for summary judgment dismissing so much of plaintiffs' amended complaint as alleges breach of a special duty of care is granted.
The parties' remaining points, to the extent not specifically addressed above, have been considered and found unpersuasive.
Accordingly, it is
ORDERED that CDTA's motion for summary judgment is granted in part and denied in part as set forth in this decision and order; and it is further
ORDERED that plaintiffs' cross-motion for summary judgment is denied in its entirety.
This constitutes the Decision and Order of the Court, the original of which is being uploaded to NYSCEF for electronic entry by the Albany County Clerk. Upon such entry, counsel for plaintiff shall promptly serve notice of entry on all other parties entitled to such notice.