The opinion of the court was delivered by: Renwick, J.
Cividanes v City of New York
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on March 22, 2012
David Friedman,J.P. John W. Sweeny, Jr. Rolando T. Acosta Dianne T. Renwick Sheila Abdus-Salaam, JJ.
Defendants Manhattan and Bronx Surface Transit Operating Authority and New York City Transit Authority appeal from an order of the Supreme Court, Bronx County (Faviola A. Soto, J.), entered May 26, 2010, which, to the extent appealed from as limited by the briefs, denied their cross motion for summary judgment dismissing the complaint based on the failure to establish a serious injury within the meaning of Insurance Law § 5102(d).
In this action to recover damages for personal injuries, plaintiff alleges that she was injured when she stepped into a hole and fell after alighting from a bus owned and operated by defendants. The court below properly rejected defendants' allegations that the No-Fault Insurance Law, which would have required plaintiff to establish that she sustained a serious injury as a result of the accident, applies to this matter. The controlling precedent is Walton v Lumbermens Mut. Cas. Co. (88 NY2d 211 ), which holds that for the No-Fault Law to apply, the vehicle must be the proximate cause of the plaintiff's injuries.
This dispute arises from an accident that occurred on the morning of May 28, 2008. Plaintiff was allegedly injured as she exited a bus owned and operated by defendants Manhattan and Bronx Surface Transit Operating Authority and New York City Transit Authority (defendants). Plaintiff testified at a General Municipal Law § 50-h hearing that as she exited the rear of the bus, she "stepped off the last step into a hole and fell." She stated that the bus did not pull completely into the bus stop; she was let out "in front of the bus stop." The bus continued on its route. She described the hole into which she stepped and fell as being "pretty far away from the curb;" while the front of the bus "pulled about a foot away from the curb," the "back of the bus was on an angle, so it was further away from the curb."
At the scene, plaintiff's left ankle started to swell. An ambulance arrived, and took her to Jacobi Medical Center's emergency room, where the staff took x-rays of her left ankle, but found no break or fracture. They wrapped the ankle with a bandage, gave her crutches and told her to visit her primary care doctor. Plaintiff was released the same day. The following day, plaintiff went to the emergency room of Montefiore Medical Center by taxi, because the pain in her ankle was "too much with the Ibuprofen." At Montefiore, they prescribed a higher dose of Ibuprofen, rewrapped her ankle with an air cast and discharged her. She returned to Montefiore the same day, and was prescribed Percocet. Her primary care physician referred her to an orthopedist, who prescribed a new type of pain medicine and physical therapy, and sent her for an MRI. Plaintiff testified that she was confined to her home "[m]ostly the first week" and confined to her bed the "first few days, about two or three days."
Afer plaintiff commenced this action, alleging that defendants were negligent in failing to provide a safe and adequate place for her to enter and exit the bus, defendants Manhattan and Bronx Surface Transit Operating Authority and New York City Transit Authority (defendants) moved for summary judgment, arguing that plaintiff did not sustain a serious injury under Insurance Law § 5102(d). In support of their motion, defendants submitted affidavits from an orthopedist and a neurologist who each conducted an independent physical examination of plaintiff. Their individual examination of the left knee similarly revealed normal range of motion. The MRI of plaintiff's left ankle, as reviewed by defendants' radiologist, did not reveal tendinopathy, ligamentous injury or fracture. Because both the orthopedist and neurologist diagnosed plaintiff as having suffered a resolved sprained left ankle, they similarly opined that plaintiff had not suffered a serious injury as a result of the accident.
In opposition, plaintiff argued that she was injured after she exited the bus and therefore was not a "covered person" pursuant to the No-Fault who has to satisfy the "serious injury" threshold. Plaintiff further argued that defendants' liability did not arise from its "use and operation" of the bus, but "rather from its duty to provide plaintiff with a safe place" to alight from the bus. Alternatively, plaintiff argued that if the threshold statute were to apply, defendants failed to meet their burden on summary judgment. Finally, plaintiff argued that, if defendants were found to have met their burden, she raised a triable issue of fact by the submission of objective medical evidence. Essentially, plaintiff submitted the affirmed report of an orthopedist who examined her twelve days after the fall and an MRI of her left knee, dated June 17, 2008, which revealed some swelling. The orthopedist's examination revealed moderate limitations in the range of motion of plaintiff's left ankle.
The court rejected defendants' argument that plaintiff's accident arose from the use or operation of the bus so as to implicate the No-Fault Law. The court reasoned that "[t]he accident did not occur because of the inherent nature of the bus, it occurred outside the bus; the bus itself did not produce the injury." The court further noted that defendants did not address whether, as a common carrier, they breached their duty to stop the bus at a ...