Opinion
04-20-2017
Lisa FAY, Plaintiff–Respondent, v. NEW YORK CITY TRANSIT AUTHORITY, et al., Defendants–Respondents, Josephine Zavolakis, et al., Defendants–Appellants.
Roe & Associates, Garden City (Patrick B. McKeown of counsel), for appellants. Jaroslawicz & Jaros PLLC, New York (David Tolchin of counsel), for Lisa Fay, respondent. Lawrence Heisler, Brooklyn, (Jane Shufer of counsel), for New York City Transit Authority, Metropolitan Transportation Authority, Manhattan and Bronx Surface Transit Operating Authority and Bus Operator McKay, respondents.
Roe & Associates, Garden City (Patrick B. McKeown of counsel), for appellants.
Jaroslawicz & Jaros PLLC, New York (David Tolchin of counsel), for Lisa Fay, respondent.
Lawrence Heisler, Brooklyn, (Jane Shufer of counsel), for New York City Transit Authority, Metropolitan Transportation Authority, Manhattan and Bronx Surface Transit Operating Authority and Bus Operator McKay, respondents.
ACOSTA, J.P., MAZZARELLI, MANZANET–DANIELS, GISCHE, KAHN, JJ.
Order, Supreme Court, New York County (Michael D. Stallman, J.), entered March 8, 2016, which granted plaintiff's motion for partial summary judgment as against defendants Josephine Zavolakis and John Zavolakis, and granted defendants New York City Transit Authority, Metropolitan Transportation
Authority, Manhattan and Bronx Surface Transit Operating Authority and Bus Operator McKay's (the transit authority defendants) motion for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.
Plaintiff and the transit authority defendants established prima facie that plaintiff was injured as a result of the negligence of the Zavolakis defendants, who made a sudden U–turn on 34th Street in front of the bus on which plaintiff was riding, causing the bus driver to stop short to avoid a collision (see Flores v. City of New York, 66 A.D.3d 599, 888 N.Y.S.2d 27 [1st Dept. 2009] ; 34 RCNY 4–05[b][1]; 4–07[h][2]; see also Vehicle and Traffic Law §§ 1128[a] ; 1160[e] ). The bus driver made a note of the license plate number of the car that made the U–turn in front of her, and the Zavolakis defendants testified that they made a U–turn every morning at about the same time and place on 34th Street, leaving Josephine Zavolakis in front of her workplace. Plaintiff established her freedom from negligence by demonstrating that she was holding onto a pole as the bus moved (see Rountree v. Manhattan & Bronx Surface Tr. Operating Auth., 261 A.D.2d 324, 328, 692 N.Y.S.2d 13 [1st Dept. 1999], lv. denied 94 N.Y.2d 754, 701 N.Y.S.2d 340, 723 N.E.2d 89 [1999] ). The transit authority defendants established the bus driver's freedom from negligence by demonstrating that she was faced with an emergency situation not of her own making (see Orsos v. Hudson Tr. Corp., 111 A.D.3d 561, 975 N.Y.S.2d 655 [1st Dept. 2013] ).
In opposition, the Zavolakis defendants failed to raise a triable issue of fact as to their own involvement in the accident; they testified that they did not recall it, but did not deny being involved, and they presented no evidence that would support any other explanation (see Pichardo v. Urban Renaissance Collaboration Ltd. Partnership, 51 A.D.3d 472, 857 N.Y.S.2d 144 [1st Dept. 2008] ). Nor did they submit evidence that would support a finding that plaintiff was negligent (see Cuadrado v. New York City Tr. Auth., 65 A.D.3d 434, 435, 884 N.Y.S.2d 35 [1st Dept. 2009], lv. dismissed 14 N.Y.3d 748, 898 N.Y.S.2d 80, 925 N.E.2d 83 [2010] ).
Neither plaintiff nor the Zavolakis defendants raised an issue of fact as to negligence on the part of the bus driver; they merely speculated that she may have been driving too fast. However, even if, as plaintiff testified, the bus accelerated to 20 miles per hour before the accident, it was operating within the citywide legal speed limit at the time (see 34 RCNY 4–06), and there is no evidence that weather or traffic conditions at the time warranted a slower speed. The bus driver had no duty to anticipate another driver's sudden, illegal maneuver (see e.g. Ward v. Cox, 38 A.D.3d 313, 831 N.Y.S.2d 406 [1st Dept. 2007] ).