Perez v. John Doe

210 A.D.3d 1028

179 N.Y.S.3d 680

Tamara PEREZ, appellant,

v.John DOE, etc., defendant,County of Nassau, et al., respondents.

2020–03690

Index No. 608176/18

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

Argued—October 11, 2022

November 23, 2022

Dell & Dean, PLLC (Joseph G. Dell and Mischel & Horn, P.C., New York, NY [Scott T. Horn, Liss M. Mendez, and Nicholas Bruno ], of counsel), for appellant.

Lewis Brisbois Bisgaard & Smith, LLP, New York, NY (Meredith Drucker Nolen and Meredith Ross Friedler of counsel), for respondents.

MARK C. DILLON, J.P., ROBERT J. MILLER, LINDA CHRISTOPHER, BARRY E. WARHIT, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Randy Sue Marber, J.), dated April 30, 2020. The order granted the motion of the defendants County of Nassau, Nassau Inter–County Express, and Transdev Services, Inc., for summary judgment dismissing the 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 she allegedly sustained when she was a passenger on a bus owned by the defendants County of Nassau, Nassau Inter–County Express, and Transdev Services, Inc. (hereinafter collectively the defendants), among others. The plaintiff testified at her hearing pursuant to General Municipal Law § 50–h that she fell shortly after boarding the bus. She testified that, as the bus pulled away from the curb, "[i]t was like a jerk," and she "fell into a split" position. The plaintiff was unable to estimate the speed at which the bus was traveling at the time of the occurrence. The bus driver testified at his deposition that the plaintiff boarded the bus, paid the fare, and started walking toward the back of the bus. The driver testified that he merged slowly into traffic as the plaintiff walked toward the back of the bus, and that he was operating the bus at about 5 miles per hour when the plaintiff fell.

The defendants moved for summary judgment dismissing the complaint insofar as asserted against them. In an order dated April 30, 2020, the Supreme Court granted the defendants’ 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 establish that the movement consisted of a jerk or lurch that was ‘unusual and violent’ " ( Golub v. New York City Tr. Auth., 40 A.D.3d 581, 582, 836 N.Y.S.2d 197, quoting 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 Mastrantonakis v. Metropolitan Transp. Auth., 170 A.D.3d 823, 824, 96 N.Y.S.3d 250 ; Rayford v. County of Westchester, 59 A.D.3d 508, 873 N.Y.S.2d 187 ). Moreover, a plaintiff may not satisfy that burden of proof merely by characterizing the movement as unusual and violent (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 ; Mastrantonakis v. Metro. Transportation Auth., 170 A.D.3d at 824, 96 N.Y.S.3d 250 ). In seeking summary judgment dismissing the complaint, however, a common carrier has the burden of establishing, prima facie, that the movement of the vehicle was not unusual and violent (see Sang Goo Park v. New York City Tr. Auth., 193 A.D.3d 1005, 142 N.Y.S.3d 839 ; Mastrantonakis v. Metropolitan Transp. Auth., 170 A.D.3d at 825, 96 N.Y.S.3d 250 ).

Here, the defendants established their prima facie...