Opinion
10960 Index 160506/17
02-06-2020
Bobby ATTERBURY, Plaintiff–Respondent, v. METROPOLITAN TRANSPORTATION AUTHORITY, et al., Defendants–Appellants.
Lawrence Heisler, Brooklyn (Harriet Wong of counsel), for appellants. Siler & Ingber, LLP, Mineola (Jeffrey P. Miller of counsel), for respondent.
Lawrence Heisler, Brooklyn (Harriet Wong of counsel), for appellants.
Siler & Ingber, LLP, Mineola (Jeffrey P. Miller of counsel), for respondent.
Acosta, P.J., Richter, Kapnick, Mazzarelli, Moulton, JJ.
Order, Supreme Court, New York County (Lisa A. Sokoloff, J.), entered October 25, 2018, which denied defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.
Plaintiff testified at his 50–h hearing that, after boarding a bus, he started to sit and reached for a strap to steady himself, when the bus "jerked" as it pulled out of the station causing him to fall. In support of their motion, defendants submitted the bus driver's affidavit and video of the interior of the bus, which shows that the bus was pulling smoothly out of the bus stop and had reached a speed of 3 miles per hour, when plaintiff fell forward as he was sitting.
In opposition, plaintiff failed to raise an issue of fact since he provided no "objective evidence" that the jerk of the bus that he felt "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 828, 830, 623 N.Y.S.2d 838, 647 N.E.2d 1346 [1995] ; see Patterson v. New York City Tr. Auth. , 151 A.D.3d 519, 55 N.Y.S.3d 43 [1st Dept. 2017] ; Pfleshinger v. Metropolitan Transp. Auth. , 137 A.D.3d 516, 27 N.Y.S.3d 29 [1st Dept. 2016] ; Cohen v. City of New York , 94 A.D.3d 450, 941 N.Y.S.2d 590 [1st Dept. 2012] ). Proof that the jerk was unusual or violent must consist of more than a "mere characterization of the stop in those terms by the plaintiff" ( Urquhart, at 830, 623 N.Y.S.2d 838, 647 N.E.2d 1346 ).