Opinion
8416 Index 308121/12
02-14-2019
Lawrence Heisler, Brooklyn, (Timothy J. O'Shaughnessy of counsel), for appellants. Cellino & Barnes, Buffalo (John E. Lavelle of counsel), for respondent.
Lawrence Heisler, Brooklyn, (Timothy J. O'Shaughnessy of counsel), for appellants.
Cellino & Barnes, Buffalo (John E. Lavelle of counsel), for respondent.
Friedman, J.P., Sweeny, Webber, Kahn, Kern, JJ.
Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered on or about June 13, 2018, which denied defendants New York City Transit Authority and Miguel A. Green's motion for summary judgment dismissing the complaint as against them, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.Defendants demonstrated that the accident occurred because a car traveling 40 to 50 miles per hour crossed the double yellow line into oncoming traffic, and that its driver was looking down at his phone and did not respond to the sound of the bus driver honking before hitting the bus on which plaintiff was a passenger (see Morales v. Chuquillanqui , 159 A.D.3d 605, 70 N.Y.S.3d 384 [1st Dept. 2018] ; Cropper v. Stewart , 117 A.D.3d 417, 984 N.Y.S.2d 374 [1st Dept. 2014], lv denied 24 N.Y.3d 914, 2015 WL 233925 [2015] ). The bus was unable to move into the right lane because of double parked vehicles. Thus, even crediting the affidavit of plaintiff, in which he states that the bus was moving between 40 and 50 miles per hour, and not the 20 miles per hour as testified to by the driver, defendants cannot be held liable; the speed of the bus was not a factor in the collision (see Caro v. Chesnick , 155 A.D.3d 447, 448, 63 N.Y.S.3d 665 [1st Dept. 2017] ).