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Eyken v. Happy Tours, Inc.

Supreme Court of New York, Second Department

October 30, 2013

Alice Van Eyken, respondent,
v.
Happy Tours, Inc., et al., appellants. Index No. 20392/09

O'Dwyer & Bernstein, LLP, New York, N.Y. (Beena Ahmad and Steven Aripotch of counsel), for appellants.

McCarthy & Carbone, P.C., Westbury, N.Y. (Patrick C. McCarthy of counsel), for respondent.

MARK C. DILLON, J.P., THOMAS A. DICKERSON, L. PRISCILLA HALL, LEONARD B. AUSTIN, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Suffolk County (Farneti, J.), dated June 25, 2012, which denied their motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The Supreme Court properly denied the defendants' motion for summary judgment. The evidence submitted in support of the defendants' motion failed to eliminate a triable issue of fact as to whether the stop by the subject bus caused a jerk or lurch that was unusual and violent (see Urquhart v New York City Tr. Auth., 85 N.Y.2d 828; Black v County of Dutchess, 87 A.D.3d 1097).

Since the defendants did not meet their prima facie burden, it is unnecessary to determine whether the papers submitted by the plaintiff in opposition were sufficient to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324).

DILLON, J.P., DICKERSON, HALL and AUSTIN, JJ., concur.


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