Opinion
2013-04-3
Mira SAIDOFF, appellant, v. NEW YORK CITY TRANSIT AUTHORITY, et al., respondents.
Rosato & Lucciola, P.C., New York, N.Y. (Paul A. Marber and Joseph S. Rosato of counsel), for appellant. Wallace D. Gossett, Brooklyn, N.Y. (Lawrence A. Silver of counsel), for respondents.
Rosato & Lucciola, P.C., New York, N.Y. (Paul A. Marber and Joseph S. Rosato of counsel), for appellant. Wallace D. Gossett, Brooklyn, N.Y. (Lawrence A. Silver of counsel), for respondents.
REINALDO E. RIVERA, J.P., DANIEL D. ANGIOLILLO, CHERYL E. CHAMBERS, and SHERI S. ROMAN, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Ash, J.), dated July 18, 2011, which granted that branch of the defendants' motion which was for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
The plaintiff, who allegedly was injured when she stumbled upon boarding a bus operated by the New York City Transit Authority, claimed that the bus driver was negligent in failing to engage the “kneeling device” to lower the steps.
A transit company owes a duty to a prospective boarding passenger to provide him or her with a reasonably safe, direct means of entrance onto the vehicle, clear of any dangerous obstruction or defect which would impede that entrance ( see Kasper v. Metropolitan Transp. Auth. Long Is. Bus, 90 A.D.3d 998, 999, 935 N.Y.S.2d 645;cf. Dobrowolski v. City of New York, 29 A.D.3d 937, 815 N.Y.S.2d 469;Blye v. Manhattan & Bronx Surface Tr. Operating Auth., 124 A.D.2d 106, 111, 511 N.Y.S.2d 612). In support of that branch of the defendants' motion which was for summary judgment, they relied upon, inter alia, the plaintiff's deposition testimony. The plaintiff, who was 67 years of age at the time of the accident, testified that, before boarding the bus, which was stopped at the curb, she did not ask the driver to engage the kneeling device to lower the steps leading onto the bus. She admitted during her deposition that she merely misjudged the height of the bottom step. She testified that when she placed her foot on the bottom step, she thought that the bottom step was low, but it turned out to be higher than expected. Her testimony demonstrated that she did not appear unable to negotiate the height differential between the curb and the bottom step of the bus when the bus stopped at the curb and opened its doors. Based on the plaintiff's deposition testimony alone, the defendants established that they did not have a duty to engage the bus's kneeling device under the facts of this case ( see Kasper v. Metropolitan Transp. Auth. Long Is. Bus, 90 A.D.3d at 999, 935 N.Y.S.2d 645;Santiago v. New York City Tr. Auth., 69 A.D.3d 530, 893 N.Y.S.2d 59;Trainer v. City of New York, 41 A.D.3d 202, 838 N.Y.S.2d 512). In opposition, the plaintiff failed to raise a triable issue of fact as to whether the defendants owed her such a duty ( cf. Atwell v. New York City Tr. Auth., 94 A.D.3d 620, 942 N.Y.S.2d 351;Carlino v. Triboro Coach Corp., 22 A.D.3d 624, 625, 803 N.Y.S.2d 105).
Accordingly, the Supreme Court properly granted that branch of the defendants' motion which was for summary judgment dismissing the complaint.