Opinion
No. 2021-313 Q C
08-12-2022
Ornetta Blackmon, Respondent, v. New York City Transit Authority and Metropolitan Transportation Authority, Appellants, John Doe, Defendant.
NYCTA Law Department-Torts (Timothy J. O'Shaughnessy of counsel), for appellants. Mallilo & Grossman (Gary Caliendo of counsel), for respondent.
Unpublished Opinion
NYCTA Law Department-Torts (Timothy J. O'Shaughnessy of counsel), for appellants.
Mallilo & Grossman (Gary Caliendo of counsel), for respondent.
PRESENT: MICHELLE WESTON, J.P., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
Appeal from an order of the Civil Court of the City of New York, Queens County (Claudia Lanzetta, J.), dated April 8, 2021. The order, insofar as appealed from, upon, in effect, consolidating for purposes of disposition a motion by defendants the New York City Transit Authority and Metropolitan Transportation Authority for summary judgment dismissing the complaint on the issue of liability with a motion by those defendants for summary judgment dismissing the complaint based upon serious injury, denied the branch of each motion seeking summary judgment dismissing so much of the complaint as was asserted against the New York City Transit Authority.
ORDERED that so much of the appeal as was by defendant Metropolitan Transportation Authority is dismissed as that defendant is not aggrieved by the order; and it is further, ORDERED that the order, insofar as appealed from, is affirmed, without costs.
Plaintiff commenced this action to recover for personal injuries she sustained when she was thrown to the ground after the New York City Transit Authority bus she boarded stopped short. Defendants New York City Transit Authority (NYCTA) and the Metropolitan Transit Authority (MTA) (together, "defendants") served an answer and discovery was conducted. Thereafter, defendants jointly made two motions: (1) to dismiss the complaint based on liability and (2) to dismiss the complaint on the threshold ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102.
In support of the first motion, defendants relied on plaintiff's deposition testimony that the bus "took off" and then the driver "slammed on his brakes." In support of the second motion, defendants argued that plaintiff did not sustain a serious injury and submitted affirmed medical reports finding no serious injury related to the accident. In opposition to the first motion, plaintiff's counsel relied on plaintiff's deposition testimony and her affidavit in support wherein she affirmed that the bus driver "abruptly slammed on the brakes in a violent manner" which caused her to go "flying backwards" and her feet to come off the ground. In opposition to the second motion, plaintiff submitted affirmed reports of her treating doctors wherein they averred that plaintiff sustained a disability with evidence of permanency as a result of the accident and plaintiff's deposition testimony that she was unable to perform her normal activities in 90 of the first 180 days after the accident.
The Civil Court denied the motion on liability, stating that plaintiff's testimony describing the abrupt stop by the bus was sufficient to defeat the motion for summary judgment on liability, but dismissed so much of the complaint as was asserted against the MTA on the ground that it is not a proper party. The court also denied the threshold motion, stating that the affirmed reports submitted by both parties present contradictory evidence, and thus created material issues of fact. While both NYCTA and MTA filed a notice of appeal, only NYCTA filed a brief.
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 demonstrate that the movement was" 'unusual and violent'" (Urquhart v New York City Tr. Auth., 85 N.Y.2d 828, 830 [1995], quoting Trudell v New York R. T. Corp., 281 NY 82, 85 [1939]), 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 at 830; see Mezarina v City of New York, 181 A.D.3d 906 [2020]). Moreover, a plaintiff may not satisfy that burden of proof merely by characterizing the stop as "unusual and violent" (see Golub v New York City Tr. Auth., 40 A.D.3d 581, 582 [2007]). However, in seeking summary judgment dismissing such a cause of action, common carriers have the burden of establishing, prima facie, that the stop was not "unusual and violent" (see Mayorga v Nassau Inter-County Express [Nice] Bus, 178 A.D.3d 1030, 1031 [2019]). Here, there is no reason to disturb the court's finding that defendants failed to make a prima facie showing of entitlement to summary judgment on liability.
We also agree with the Civil Court that the evidence presented by the parties created material issues of fact as to whether plaintiff suffered a serious injury under the permanent consequential limitation of use of a body organ or member and a significant limitation of use of a body function or system categories of Insurance Law § 5102 (d). With respect to the 90/180-day category of Insurance Law § 5102 (d), the papers submitted in support of the threshold motion failed to adequately address plaintiff's claim, set forth in the bill of particulars, that plaintiff had sustained a medically determined injury or impairment of a nonpermanent nature which prevented her from performing substantially all of the material acts which constituted her usual and customary activities for not less than 90 days during the 180 days immediately following the subject accident (see Insurance Law § 5102 [d]; Fernandez v Xie Jian Gao, 114 A.D.3d 637 [2014]; Che Hong Kim v Kossoff, 90 A.D.3d 969 [2011]). As the examinations of plaintiff relied upon in the threshold motion were conducted more than 18 months after the accident, the experts did not relate their medical findings to this category of serious injury for the period of time immediately following the accident (see Kapeleris v Riordan, 89 A.D.3d 903 [2011]). In addition, plaintiff's deposition testimony relied upon by defendants similarly did not address plaintiff's usual and customary activities during the 90/180 period. Consequently, defendants failed to establish, prima facie, that plaintiff did not sustain a serious injury under the 90/180-day category of Insurance Law § 5102 (d) (see Hall v Stargot, 187 A.D.3d 996 [2020]; Reid v Edwards-Grant, 186 A.D.3d 1741 [2020]; Jong Cheol Yang v Grayline NY Tours, 186 A.D.3d 1501 [2020]).
Accordingly, the order, insofar as appealed from, is affirmed.
WESTON, J.P., TOUSSAINT and GOLIA, JJ., concur.