Iwata v Manhattan & Bronx Surface Tr. Operating Auth.

Iwata v Manhattan & Bronx Surface Tr. Operating Auth. 2016 NY Slip Op 07760 Decided on November 17, 2016 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 17, 2016
Acosta, J.P., Renwick, Moskowitz, Feinman, Kahn, JJ.
2234 152771/13

[*1]Masako Iwata, Plaintiff-Appellant,

v

Manhattan and Bronx Surface Transit Operating Authority, et al., Defendants-Respondents.

Law Office of Jeffrey I. Schwimmer, New York (Jeffrey I. Schwimmer of counsel), for appellant.

Lawrence Heisler, Brooklyn (Timothy J. O'Shaughnessy of counsel), for respondents.

Order, Supreme Court, New York County (Michael D. Stallman, J.), entered on or about July 13, 2015, which granted defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion denied.

Defendants failed to establish prima facie that the emergency doctrine is applicable to the facts of this case, i.e., that plaintiff's injuries resulted from defendant bus driver's reaction to "a sudden and unforeseen emergency not of [his] own making" (Caristo v Sanzone , 96 NY2d 172, 175 [2001]). They submitted the driver's testimony that a taxicab cut him off and made a right turn in front of him as he was slowing down and pulling into the Second Avenue bus stop. However, defendants' submissions include the driver's testimony that he made two stops for traffic between Third and Second Avenues and plaintiff passenger's testimony that she fell to the floor of the bus when the bus came to a "violent short stop" between Third and Second Avenues, before it stopped at the Second Avenue bus stop. Thus, defendants failed to establish that the emergency created by the taxicab absolved them from negligence with respect to the stop that caused plaintiff's fall. To the extent plaintiff's testimony conflicts with the driver's testimony concerning the stops made by the bus, the conflict presents issues of fact that preclude summary judgment.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 17, 2016

CLERK