McClain v. MTA Bus Co.

2024 NY Slip Op 05972

Geralynn McClain, appellant, v. MTA Bus Company, respondent, et al., defendant.

No. 2023-07028, Index No. 701698/19

Supreme Court of New York, Second Department

November 27, 2024

Bergman, Bergman, Fields & Lamonsoff, LLP, Hicksville, NY (Eric J. Lamonsoff, Clifford D. Gabel, and Julie T. Mark of counsel), for appellant.

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

BETSY BARROS, J.P. ROBERT J. MILLER BARRY E. WARHIT JANICE A TAYLOR, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Phillip Hom, J.), entered May 2, 2023. The order, insofar as appealed from, granted that branch of the motion of the defendant MTA Bus Company which was for summary judgment dismissing the complaint insofar as asserted against it on the ground that it was not liable for the plaintiff's injuries.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff allegedly was injured when another passenger fell on her while she was on board a bus owned and operated by the defendant MTA Bus Company (hereinafter the defendant). The plaintiff commenced this action against the defendant, and another defendant, to recover damages for personal injuries. The defendant moved for summary judgment dismissing the complaint insofar as asserted against it on the ground that it was not liable for the plaintiff's injuries, contending that the movement of the bus that allegedly caused the plaintiff's injuries was neither unusual nor violent and, in the alternative, on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident. In an order entered May 2, 2023, the Supreme Court granted that branch of the motion which was for summary judgment dismissing the complaint insofar as asserted against the defendant on the ground that the defendant was not liable for the plaintiff's injuries, and, in effect, denied the remainder of the motion as academic. 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; see Magloire v MTA Bus Co., 222 A.D.3d 963; Perez v Doe, 210 A.D.3d 1028, 1029; Tomaszycki v New York City Tr. Auth., 194 A.D.3d 977, 978). "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" (Magloire v MTA Bus Co., 222 A.D.3d 963). To obtain summary judgment, a common carrier must establish, prima facie, that the movement of its vehicle was not unusual and violent (see id. at 964; Perez v Doe, 210 A.D.3d at 1029; Gordon v New York City Tr. Auth., 206 A.D.3d 977, 978).

Here the defendant...