Magloire v. MTA Bus Co.

222 A.D.3d 963

201 N.Y.S.3d 667

Ghislaine MAGLOIRE, appellant,

v.MTA BUS COMPANY, et al., respondents, et al., defendant.

2022–06876

Index No. 711439/19

Supreme Court, Appellate Division, Second Department, New York.

Argued—September 21, 2023

December 27, 2023

Mallilo & Grossman, Flushing, NY (John S. Manessis of counsel), for appellant.

Armienti, DeBellis & Rhoden, LLP, New York, NY (Vanessa M. Corchia of counsel), for respondents.

VALERIE BRATHWAITE NELSON, J.P., DEBORAH A. DOWLING, BARRY E. WARHIT, LAURENCE L. LOVE, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Sally E. Unger, J.), dated August 3, 2022. The order granted the motion of the defendants MTA Bus Company and Metropolitan Transportation Authority for summary judgment dismissing the amended complaint insofar as asserted against them.

ORDERED that the order is affirmed, with costs.

The plaintiff commenced this action to recover damages for personal injuries, alleging that she was injured when she fell while aboard a bus owned by the defendants MTA Bus Company and Metropolitan Transportation Authority (hereinafter together the defendants). The plaintiff asserts that she fell after she had boarded the bus, while she was attempting to pay the fare, and the bus suddenly began to move. The defendants moved for summary judgment dismissing the amended complaint insofar as asserted against them on the ground that the movement of the bus that caused the plaintiff to fall was neither unusual nor violent. The Supreme Court granted the motion. The plaintiff appeals.

To establish a prima facie case of negligence against a common carrier for injuries sustained by a passenger as a result of the movement of the vehicle, the plaintiff must demonstrate that the movement was unusual and violent, rather than merely one of the sort of "jerks and jolts commonly experienced in city bus travel" ( Urquhart v. New York City Tr. Auth., 85 N.Y.2d 828, 830, 623 N.Y.S.2d 838, 647 N.E.2d 1346 ; see Perez v. Doe, 210 A.D.3d 1028, 1029, 179 N.Y.S.3d 680 ; Tomaszycki v. New York City Tr. Auth., 194 A.D.3d 977, 978, 144 N.Y.S.3d 369 ). Objective evidence of the force of the movement is needed, and the plaintiff's mere characterization of the movement as unusual and violent is insufficient (see Urquhart v. New York City Tr. Auth., 85 N.Y.2d at 830, 623 N.Y.S.2d 838, 647 N.E.2d 1346 ; Perez v. Doe, 210 A.D.3d at 1029, 179 N.Y.S.3d 680 ; Golub v. New York City Tr. Auth., 40 A.D.3d 581, 582, 836 N.Y.S.2d 197 ). In seeking summary judgment in its favor, a common carrier has the burden of establishing, prima facie, that the movement of its vehicle was not unusual and violent (see Perez v. Doe, 210 A.D.3d at 1029, 179 N.Y.S.3d 680 ; Gordon v. New York City Tr. Auth., 206 A.D.3d 977, 978, 168 N.Y.S.3d 858 ; Orji v. MTA Bus Co., 204 A.D.3d 1027, 1028, 167 N.Y.S.3d 536 ).

Here, the defendants established their prima facie entitlement to judgment as a matter of law by submitting transcripts of the plaintiff's testimony at her hearing pursuant to General Municipal Law § 50–h and deposition, and the deposition testimony of the bus driver, which demonstrated that the movement of the bus was not "unusual or violent" or of a "different class than the jerks and jolts commonly experienced in city bus travel" (...