Summary
In Alandette, supra, by comparison, the plaintiff testified that while she was walking to the rear of the bus to find a seat, she fell backwards when the driver applied the brakes.
Summary of this case from Lewis v. ALL Transit, LLCOpinion
2015-04-15
Consuelo ALANDETTE, appellant, v. NEW YORK CITY TRANSIT AUTHORITY, et al., respondents.
Dillon, J.P., Dickerson, Duffy and Barros, JJ., concur.
Sim & Record, LLP, Bayside, N.Y. (Sang J. Sim of counsel), for appellant. Lawrence Heisler, Brooklyn, N.Y. (Jane Shufer and Anna Ervolina of counsel), for respondents.
MARK C. DILLON, J.P., THOMAS A. DICKERSON, COLLEEN D. DUFFY, and BETSY BARROS, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Jimenez–Salta, J.), dated April 28, 2014, which granted the defendants' motionfor summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
The plaintiff allegedly sustained personal injuries shortly after boarding a bus on Utica Avenue, near the corner of Eastern Parkway, in Brooklyn. While she was walking to the rear of the bus to find a seat, the plaintiff fell backwards when the driver applied the brakes.
To prevail on a cause of action alleging that a common carrier was negligent in stopping a bus, a plaintiff must prove that the stop was unusual and violent, rather than merely one of the sort of “jerks and jolts commonly experienced in city bus travel” ( 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 Trudell v. New York R.T. Corp., 281 N.Y. 82, 85, 22 N.E.2d 244; Black v. County of Dutchess, 87 A.D.3d 1097, 1098, 930 N.Y.S.2d 64). Moreover, a plaintiff may not satisfy that burden of proof merely by characterizing the stop as unusual and violent ( see Urquhart v. New York City Tr. Auth., 85 N.Y.2d at 829–830, 623 N.Y.S.2d 838, 647 N.E.2d 1346; Burke v. MTA Bus Co., 95 A.D.3d 813, 942 N.Y.S.2d 817; Gioulis v. MTA Bus Co., 94 A.D.3d 811, 812, 941 N.Y.S.2d 689). There must be “objective evidence of the force of the stop sufficient to establish an inference that the stop was extraordinary and violent, of a different class than the jerks and jolts commonly experienced in city bus travel and, therefore, attributable to the negligence of 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 Golub v. New York City Tr. Auth., 40 A.D.3d 581, 582, 836 N.Y.S.2d 197; Banfield v. New York City Tr. Auth., 36 A.D.3d 732, 732–733, 828 N.Y.S.2d 534). In seeking summary judgment dismissing the complaint, however, common carriers have the burden of establishing, prima facie, that the stop was not unusual and violent ( see Burke v. MTA Bus Co., 95 A.D.3d at 813, 942 N.Y.S.2d 817; Guadalupe v. New York City Tr. Auth., 91 A.D.3d 716, 717, 936 N.Y.S.2d 314; Black v. County of Dutchess, 87 A.D.3d at 1098–1099, 930 N.Y.S.2d 64).
The defendants established their prima facie entitlement to judgment as a matter of law by submitting a transcript of the plaintiff's deposition testimony, which demonstrated that the stop of the bus was not “unusual or violent” or 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 MacDonald v. New York City Tr. Auth., 106 A.D.3d 1057, 1058, 966 N.Y.S.2d 477; Burke v. MTA Bus Co., 95 A.D.3d at 813, 942 N.Y.S.2d 817; 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 at 582, 836 N.Y.S.2d 197). In opposition, the plaintiff failed to raise a triable issue of fact.
Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint.
The plaintiff's remaining contentions have been rendered academic by our determination.