Garcia v Sunny Transp. Servs.

Garcia v Sunny Transp. Servs. 2012 NY Slip Op 07086 Decided on October 24, 2012 Appellate Division, Second 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 October 24, 2012
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
RANDALL T. ENG, P.J.
PETER B. SKELOS
PLUMMER E. LOTT
JEFFREY A. COHEN, JJ.
2011-11776
(Index No. 18371/09)

[*1]Yazmin Garcia, respondent,

v

Sunny Transportation Services, et al., appellants.




Lewis, Brisbois, Bisgaard & Smith, LLP, New York, N.Y.
(Nicholas Hurzeler and Gregory S. Katz of counsel), for appellants.
Blank & Star, PLLC, Brooklyn, N.Y. (Helene Blank, Scott
Star, and Matthew Sakkas of counsel),
for respondent.


DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Jacobson, J.), dated November 2, 2011, which granted the plaintiff's motion for summary judgment on the issue of liability against the defendant Sunny Transportation Services.

ORDERED that the appeal by the defendants M & C Transportation, LLC, and "John Doe" is dismissed, as those defendants are not aggrieved by the order appealed from (see CPLR 5511); and it is further,

ORDERED that the order is reversed on the appeal by the defendant Sunny Transportation Services, on the law, and the plaintiff's motion for summary judgment on the issue of liability against that defendant is denied; and it is further,

ORDERED that one bill of costs is awarded to the defendant Sunny Transportation Services.

"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 AD3d 581, 582, quoting Urquhart v New York City Tr. Auth., 85 NY2d 828, 830; see Burke v MTA Bus Co., 95 AD3d 813; Gioulis v MTA Bus Co., 94 AD3d 811, 812; Black v County of Dutchess, 87 AD3d 1097, 1098). Here, in moving for summary judgment on the issue of liability against the defendant Sunny Transportation Services, the plaintiff merely alleged in her affidavit that the defendant driver began to drive away before she was seated, and she failed to establish, prima facie, that the movement of the vehicle was "unusual and violent" (Urquhart v New York City Tr. Auth., 85 NY2d at 830; see Guadalupe v New York City Tr. Auth., 91 AD3d 716; McLeod v County of Westchester, 38 AD3d 624, 625; Jenkins v Westchester County, 278 AD2d 370). Since the plaintiff failed to meet her initial burden as the movant, the plaintiff's motion for summary judgment [*2]should have been denied, regardless of the sufficiency of the opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851).
ENG, P.J., SKELOS, LOTT and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court