Valentin v. N.Y.C. Transit Auth.

2022 NY Slip Op 30590(U)

MILAGROS VALENTIN, Plaintiff, v. NEW YORK CITY TRANSIT AUTHORITY d/b/a MTA NEW YORK CITY TRANSIT AUTHORITY, and METROPOLITAN TRANSIT AUTHORITY, Defendants.

NYSCEF Doc. No. 49 Motion Sequence No. 004

Index No. 501056/2011

Supreme Court, Kings County

February 22, 2022

Unpublished Opinion

DECISION & ORDER

Hon Consuelo Mallafre Melendez, J. S. C.

Recitation as required by CPLR §2219 [a], of the papers considered in the review: NYSCEF #s: 22, 23, 24-36, 37-42 43-45, 48

After oral argument and a review of the submissions herein, the Court finds as follows:

Defendants NEW YORK CITY TRANSIT AUTHORITY (sued herein as "NEW YORK CITY TRANSIT AUTHORITY d/b/a MTA NEW YORK CITY TRANSIT AUTHORITY) and METROPOLITAN TRANSPORTATION AUTHORITY (sued herein as "METROPOLITAN TRANSIT AUTHORITY") move for summary judgment in their favor pursuant to CPLR 3211 and CPLR 3212 on the issue of liability and pursuant to Insurance Law § 5102(d) claiming that plaintiff does not meet threshold for serious injury.

On January 12, 2011, Plaintiff was a passenger on the B20 bus. As she was disembarking, plaintiff slipped while walking down the stairs of the bus. Plaintiff claims that defendants breached their duty of care in allowing the step of the bus to be in a wet, icy, dirty and slippery condition.

A Defendants' failure to make their prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 [1986]; Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851, 853 [1985]). A common carrier is required to exercise that care which a reasonably prudent carrier of passengers would exercise under the same circumstances, in keeping with dangers and risks known to the carrier or which it should reasonably have anticipated (Fishman v. Manhattan & Bronx Surface Tr Operating Auth., 79 N.Y.2d 1031 [1992]). Common carriers owe a duty of care to their passengers to require them to not only keep their transportation vehicles safe, but also to maintain a safe means of ingress and egress thereto for their passengers (Marshall v. City of Albany, 184 A.D.3d 1043 [3d Dept. 2020]).

Defendants fail to establish their prima facie burden to grant summary judgment in their favor. While they correctly argue that there is no duty for a common carrier to constantly clean the floor of the buses, they fail to establish facts to support their position.

In Robins v. Metropolitan Transit Authority, 58 A.D.3d 711 [2d Dept. 2009], the Appellate Division, Second Department, held that, where a Plaintiff slipped and fell on a wet step while exiting the bus, "the defendants did not breach a duty owed to the plaintiff since, under the weather conditions which existed at the time of the accident, it would be unreasonable to expect the defendants to constantly clean the floor of their buses." Robins, 58 A.D.3d at 711. The Second Department has repeatedly held that "[i]t would be unreasonable to expect the defendant[s] to constantly clean the floor[s] of [their] buses" during a time when there are adverse weather conditions. See McKenzie v. Westchester, 38 A.D.3d 855 [2d Dept. 2007] [quoting Spooner v. New York City Tr. Auth., 298 A.D.2d 575, 575-576 [2d Dept. 2002]).

While the law does not require a common carrier to "constantly clean the floor of the bus," it nevertheless imposes a duty of care to its passengers. In this case, defendants submit no evidence to establish that the floor of the bus was cleaned or maintained at all. At a minimum, there is no indication that the condition of the aisle leading to the steps and the steps were ever inspected at any time on the day of the accident. Further, defendants have not submitted evidence of precipitation and weather conditions in effect at the time of the accident or in the hours preceding it. No meteorological report or any other evidence is offered to establish conditions as existed at around the time of the fall. Defendants, instead, rely on the ambiguous and inconclusive testimony of the plaintiff and plaintiff's daughter recalling a previous snow fall and summarily rest on assumptions about the weather. In sum, Defendants submit no evidence of any efforts made to maintain the steps and relevant portion of the aisle. "To meet its initial burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell" (Birnbaum v. New York Racing Assn., Inc., 57 A.D.3d 598, 598-599 [2d Dept. 2008]; See Schiano v. Mijul, Inc., 79 A.D.3d 726, 726-727 [2d Dept. 2010]). Indeed, common carriers owe a duty of care to their passengers to require them to not only keep their transportation vehicles safe, but also to maintain a safe means of ingress and egress thereto for their passengers (Marshall, 184 A.D.3d 1043 [3d Dept. 2020]).

Defendants also move pursuant to Insurance Law § 5102(d) claiming that plaintiff has not sustained a serious injury. "'Summary judgment is an appropriate vehicle for determining whether a plaintiff can establish, prima facie, a serious injury' within the meaning of Insurance Law § 5102(d)" (Wright v. Melendez, 140 A.D.2d 337 [2d Dept.1998]). The defendants bear the burden of proof to demonstrate that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). The defendants may do so through the submission of affidavits and affirmations of medical experts who examined the plaintiff and found no objective medical evidence to support a serious injury claim (Grossman v. Wright, 268 A.D.2d 79 [2d Dept. 2000]). Once the defendants have established prima facie entitlement to summary judgment through admissible evidence, the burden shifts to the plaintiff to demonstrate that a triable issue of fact exists as to a serious injury was sustained within the meaning of the No-Fault Law (Grossman, 268 A.D.2d 79; Pommells v. Perez, 4 N.Y.3d 566 [2005]).

However, "summary judgment should be granted in cases where the plaintiff's opposition is limited to 'conclusory assertions tailored to meet statutory requirements'" (Grossman, 268 A.D.2d 79 at 83 quoting Lopez v. Senatore, 65 N.Y.2d 1017 [1985]). "In order to successfully oppose a motion for summary judgment on the issue of whether an injury is serious within the meaning of Insurance Law § 5102(d), the plaintiff's expert must submit quantitative objective findings in addition to an opinion as to the significance of the injury" (Grossman, 268 A.D.2d 79, 84 [2d Dept. 2000]). Subjective complaints of pain alone, absent supporting objective medical evidence is not sufficient to establish a serious injury (Perl v. Meher, 18 N.Y.3d 208 [2011]). Objective medical proof is critical in determining whether a plaintiff's injuries were truly "serious" (Perl, 18 N.Y.3d 208 [2011]). Supporting objective medical tests include "X-rays, MRI's, straight-leg or Lasque tests, and any other similarly recognized tests or quantitative results based on a neurological examination" (Grossman, 268 A.D.2d 79 [2d Dept. 2000]).

The timing of these medical evaluations is also significant to a court's determination. A plaintiff should submit qualitative medical evidence which establishes symptoms shortly after the accident, and quantitative measurements of range of motion performed later on in preparation of litigation (Perl, 18 N.Y.3d 208 [2011]). The former serves to establish that the accident was the proximate cause of a plaintiff's injuries and the latter serves to establish that the injuries are severe (Perl, 18 N.Y.3d 208).

Regarding the "significant limitation of use" category of serious injury, the Court of Appeals has held that the determination of "[w]hether a limitation of use or function is 'significant' or 'consequential'… relates to medical significance and involves a comparative determination of the degree or qualitative nature of an injury based on the normal function, purpose and use of the body part" (Toure, 98 N.Y.2d 345 at 353 quoting Dufel v. Green, 84 N.Y.2d 795 [1995]). A "minor, mild or slight limitation of use" is not significant under the statute (Licari v. Elliott, 57 N.Y.2d 230, 236 ([1982]). The Second Department has found that "while a significant limitation of use of a body function or member need not be permanent in order to constitute a serious injury…any assessment of the significance of a bodily limitation necessarily requires consideration not only of the extent or degree of the limitation, but of its duration as well" (Lively v. Fernandez, 85 A.D.3d 981, 982 [2d Dept. 2011] quoting Partlow v. Meehan, 155 A.D.2d 647 [2d Dept. 1989]).

To recover for an injury under the 90/180-day category of serious injury, a plaintiff "must show, by objective evidence, the existence of a medically determined injury or impairment of a non-permanent nature that affected substantially all of the material acts that constitute his or her daily...