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Mayorga v. Nassau Inter-County Express (Nice) Bus

Supreme Court of New York, Second Department

December 24, 2019

Graciela Mayorga, appellant,
v.
Nassau Inter-County Express (Nice) Bus, et al., respondents. Index No. 1960/16

          Argued - October 11, 2019

         D61621 T/htr

          Robert F. Danzi, Jericho, NY (Christine Coscia of counsel), for appellant.

          Harris Beach PLLC, Uniondale, NY (William J. Garry and Sandy Milord of counsel), for respondents.

          WILLIAM F. MASTRO, J.P. COLLEEN D. DUFFY BETSY BARROS VALERIE BRATHWAITE NELSON, JJ.

          DECISION & ORDER

         In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Sharon M.J. Gianelli, J.), entered March 12, 2018. The order granted the defendants' motion for summary judgment dismissing the complaint and denied, as academic, the plaintiff's cross motion for a unified trial on the issues of liability and damages.

         ORDERED that the order is affirmed, with costs.

         The plaintiff commenced this action to recover damages for personal injuries she allegedly sustained while a passenger on a bus owned and operated by the defendants. While she was standing near the front of the bus in anticipation of getting off at the next stop, the plaintiff fell forward and landed on her back next to the driver after the driver applied the brakes. By order entered March 12, 2018, the Supreme Court granted the defendants' motion for summary judgment dismissing the complaint and denied, as academic, the plaintiff's cross motion for a unified trial on the issues of liability and damages. The plaintiff appeals.

         "To establish a prima facie case of negligence against a common carrier for injuries sustained by a passenger when the vehicle comes to a halt, the plaintiff must establish that the stop caused a jerk or lurch that was 'unusual and violent'" (Urquhart v New York City Tr. Auth., 85 N.Y.2d 828, 829-830; see Cui Fang Li v New York City Tr., 155 A.D.3d 938, 939; Bethune v MTA Long Is. Bus, 138 A.D.3d 1052; Dowdy v MTA-Long Is. Bus, 123 A.D.3d 655). However, "'[a] plaintiff may not satisfy that burden of proof merely by characterizing the stop as unusual and violent'" (Bethune v MTA Long Is. Bus, 138 A.D.3d at 1052, quoting Lowhar-Lewis v Metropolitan Transp. Auth., 97 A.D.3d 728, 728-729). The evidence must objectively demonstrate that the force of the stop was unusual and violent and different from "the jerks and jolts commonly experienced in city bus travel and, therefore, attributable to the negligence of defendant" (Urquhart v New York City Tr. Auth., 85 N.Y.2d at 830). In seeking summary judgment dismissing a complaint, however, a common carrier has the burden of establishing, prima facie, that the stop was not unusual and violent (see Alandette v New York City Tr. Auth., 127 A.D.3d 896, 897; Burke v MTA Bus Co., 95 A.D.3d 813; Guadalupe v New York City Tr. Auth., 91 A.D.3d 716, 717).

         Here, the defendants established their prima facie entitlement to judgment as a matter of law by submitting the transcripts of the plaintiffs hearing pursuant to General Municipal Law § 50-h and deposition testimony, as well as the transcript of the driver's deposition testimony and his sworn affidavit, which demonstrated that the stop of the bus was not "unusual or violent" or of a "different class than the jerks and jolts commonly experienced in city bus travel" (Urquhart v New York City Tr. Auth., 85 N.Y.2d at 830; see Alandette v New York City Tr. Auth., 127 A.D.3d at 897; Dowdy v MTA Long Is. Bus, 123 A.D.3d at 655; Rayford v County of Westchester, 59 A.D.3d 508; Harwin v Metropolitan Transp. Auth ., 45 A.D.3d 488; Banfield v New York City Tr. Auth., 36 A.D.3d 732). In opposition, the plaintiff failed to raise a triable issue of fact.

         Accordingly, we agree with the Supreme Court's determination granting the defendants' motion for summary judgment dismissing the complaint and denying, as academic, the plaintiffs cross ...


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