Liao v Metropolitan Transp. Auth. Long Is. Bus

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Liao v Metropolitan Transp. Auth. Long Is. Bus 2012 NY Slip Op 30311(U) January 26, 2012 Supreme Court, Nassau County Docket Number: 288/10 Judge: Karen V. Murphy Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] Short Form Order SUPREME COURT - STATE OF NEW YORK TRiAL TERM. PART 11 NASSAU COUNTY PRESENT: Murphv Justice of the Supreme Court Honorable Karen v: QI LIAO, Index No. 288/10 Plaintiff(s), Motion Submitted: 11/28/11 Motion Sequence: 001 -againstMETROPOLIT AN TRANSPORTATION AUTHORITY LONG ISLAN BUS aik/a MTA LONG ISLAND BUS and DAVID NEHREBECKI, Defendant(s). The following papers read on this motion: Notice of Motion/Order to Show Cause........................ Answering Papers.......................................................... Reply............................................................................. . Briefs: Plaintiff slPetitioner ' s........................................ Defendant' s/Respondent' s.................................. The defendants , Metropolitan Transportation Authority Long Island Bus alk/a MT 3212 Long Island Bus (hereinafter MT A J and David Nehrebecki , move pursuant to CPLR for an order granting summary judgment dismissing the plaintiffs complaint (Sequence #00 I). On May 31 , 2009 , the plaintiff, along with her then 14 year old son and her then 7 year old daughter , were passengers on an MT A bus traveling between the Flushing terminal and the bus stop located just past the intersection at South Middle Neck Road and Susquehana Road. On said date , the bus was operated by defendant , David Nehrebecki , an employee of MT A. The plaintiff alleges that after signating the driver she wanted to exit at Susquehanna [* 2] Road , sire immediately stood up adjacent to the front door ofthe bus and within " one to two seconds "l thereafter was caused to fall down when "the bus made a shar stop " in front of a traffic light controllng the intersection. The plaintiff states that after she fell , her " head was on the lowest" of the steps leading into the bus , and her foot was on the highest. The plaintiff claims that as a result of the subject accident , she sustained injuries to her head , neck , right hip and left shoulder and on January 7th , 2010 commenced the underlying action alleging that the named defendants were negligent it the operation of the bus. 2 The defendants ' application for summary judgment dismissing the plaintiffs complaint thereafter ensued and is determined as set forth hereinafter. In support ofthe instant application, counsel for the defendants posits that on the day in issue , the bus upon which the plaintiff was a passenger, was operated in a safe and nonnegligent manner and any of the jolts experienced by Ms. Liao were of the type which Podhaskie Affirmation in Support at 24). Counsel relies , in par, upon that portion of the deposition testimony of David Nehrebecki wherein he stated that in the minutes just prior to subject accident , he was only traveling at approximately 25 miles per hour. Counsel fuher references the defendant's testimony whereby he stated when the traffic light controllng the intersection tured red , he began to " safely and slowly bring the bus to a full stop. ordinarily attend a bus stopping at an intersection (see In addition to the foregoing, counsel relies upon the testimony of non- par witness and fellow passenger , Maria Cortez , who , when asked ifthere was anything unusual about the way in which the driver stopped the bus , unequivocally answered " no. In opposing the instant application , counsel for the plaintiff initially contends that there are triable issues of fact with respect to precisely how the subject accident occurred Huang Affirmation in thus warranting denial of the defendants ' instant application Opposition at , 4 2, 48 (see 50). To this point counsel posits that defendant N ehrebecki has provided two conflcting versions as to the happening ofthe subject accident. Specifically, counsel argues that while in the " Bus Operator Accident Report" , defendant Nehrebecki stated the plaintiff " rang bell , . . . got up (andJ walked to the front of bus (andJ collapsed I The Cour notes that the plaintiffs original testimony reflects she initially stated that it was within " one to after standing up that she was caused to fall. However , said testimony was thereafter corrected on the Errata Sheet indicating that " minutes " should have been " seconds (see Podhaskie Affmnation in Support at Exh. D). two minutes " 2 The plaintiffs daughter also (see purortedly sustained injuries , yet never fied a claim in connection therewith Huang Affmnation in Opposition at Exh. A at p. 12). .. " [* 3] when I safely stop(ped) the bus for a red light. , he thereafter changed his account and (id. testified the plaintiff fell down prior to the bus having stopped at ~43). Counsel additionally argues that the plaintiff s testimony adduced at both her deposition , as well as the 50- h hearing constitutes sufficient objective evidence that the stopping of the bus was " unusual and violent" and asserts that Ms. Cortez repeatedly stated that as a result of the bus stop, the Plaintiff and her daughter fell down (id. at ~42 4 7). As stated above , the plaintiff claims that she was caused to fall and sustain serious injuries when the bus upon which she was a passenger made a sharp stop. " 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 (Urquhart v. New York City Transit Authority, lurch that was ' Trudell v. New York R. 2d 828 647 N. 2d 1346, 623 N. Blackv. County of Duchess 87 A. D.3d 1097 T. Corp. 281 N. Y. 82 22 N. Rayford v. County of Westchester 59 A. D.3d 508 873 930 N. 2d 187 (2d Dept. , 2009)). Moreover (p)roofthat the stop was unusual or violent must consist of more that a mere characterization ofthe stop in those terms by the plaintiff' unusual and violent' " S.2d 838 (1995) quoting 2d 244 (1939); 2d 64 (2d Dept., 2011); at 830); (Urquhartv. New York City TransitAuthority, supra Guadalupe v. New York City D. 2dDept.). Once evidence 2012WL 149524 (N. TransitAuthority, has been provided establishing that the stop was unusual or violent, it becomes incumbent upon the carier to come forth with credible evidence which explains the necessity for (Harris v. Manhattan and Bronx Surface Transit stopping the bus in such a manner Operating Authority, 138 A. 2d 56 , 529 N. 2d 290 (15t Dept 1988)). In the Instant matter, the Court finds that the defendants have demonstrated their entitlement to summary judgment by proffering competent evidence that the bus was (Alvarez v. Prospect Hospital 68 N. Y.2d 320 , 501 Winegrad v. New York Univ. Med. Center, 64 2d 572 , 508 N. 2d 851 , 476 N. 2d 642 , 487 N. S.2d 316 (1985)). The deposition testimony of defendant Nehrebecki that he " safely and slowly " brought the bus to full stop was fully corroborated by Ms. Cortez , who stated that there was nothing unusual about the maner in operated in a non-negligent manner S.2d 923 (1986); which the bus was brought to a stop (id. 3 The Cour is compelled to note that in opposing the defendants ' application , plaintiffs counsel provides and heavily relies upon two statements taken from Kevin and Joana Yu , the plaintiffs two children , both of whom were also passengers on the bus. However , inasmuch as neither of these statements are in admissible form , the (Zuckerman v. City of New York 49 N. Y.2d 557 , 404 N. E.2d 718 , 427 contents thereof were not considered Y.S.2d 595 (1980)). [* 4] showing, the plaintiff s testimony that the In opposition to the defendant' primafade (Urquhart bus made a shar stop , standing alone, is insufficient to raise an issue of fact A common carrier is subject to the same duty of care as any other potential tortfeasor - reasonable care under all of the circumstances of the paricular case (Bethel v. New York City Tr. Auth. 92 N. 2d 348, 703 N. 2d 1214 sub judice other than the plaintiffs characterization 2d20l 681 N. of the accident , there is no other competent evidence as to either the severity of the stop or any lack of reasonable care on the part of the defendants. As noted above , the two witness statements offered to corroborate plaintiff s testimony that the MT A bus made a " sharp v. New York City TransitAuthority, supra). (1998)). In the matter (Zuckerman v. City of stop , are not in admissible form and as such were not considered 2d 595 (1980)). Further , while New York 49 N. 2d 557 , 404 N. E.2d 718 , 427 N. counsel for the plaintiff plainly asserts that Ms. Cortez repeatedly testified the plaintiff fell down " as a result of the bus stop , such assertion is simply not supported by the record. Rather , a review of her deposition transcript reveals that on at least two occasions Ms. Cortez testified the plaintiff fell " (b )ecause she was standing " and " didn t wait for the bus to stop prior to getting up. Based upon the foregoing, the application interposed by the defendants , Metropolitan Transportation Authority Long Island Bus alk/a MT A Long Island Bus and David Nehrebecki , for an order granting summary judgment dismissing the plaintiffs complaint is hereby Granted. The foregoing constitutes the Order of this Court. Dated: January 26 2012 Mineola, N. ENTERED JAN 30 2012 NASSAU COUHT'f COWTY ClIRK' 1 OfFICE

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