McKesson v MTA/Long Is. Bus

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McKesson v MTA/Long Is. Bus 2011 NY Slip Op 32688(U) October 13, 2011 Sup Ct, Nassau County Docket Number: 12233/09 Judge: Anthony L. Parga 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] ScA SHORT FORM ORDER SUPREME COURT - NEW YORK STATE- NASSAU COUNTY PRESENT: HON. ANTHONY PARGA JUSTICE L. )( P Aft 1l 8 INDE)( NO. : 12233/09 LA 1l0Y A McKESSON Plaintiff(s), -against - MOTION DATE: 08/18/11 SEQUENCE NO. 001 MT A/LONG ISLAND BUS Defendant( s). Notice of Motion , Affs. & Exs.................... ""'" ..... Affirmation in Opposition & Exs............................................................................. Fteply Affirmation..................................................................................................... Upon the foregoing papers , defendant' s motion for summary judgment , pursuant to CPLR 3212 , is granted. The following facts are taken from pleadings and submitted papers and do not constitute findings of fact by this Court. This is a personal injury action wherein the plaintiff alleges that she was injured as she exited an MTA Long Island Bus in the late evening oUune 24 2008. Defendant moves for summary judgment arguing that the MTA/Long Island Bus cannot be found liable for plaintiff's accident or i juries. Defendant argues that there are two versions of the accident , neither of which inculpates the defendant as the liable party. The first version , supported by plaintiffs pleadings and deposition testimony, is that plaintitps i juries were caused when she was pushed by two men who were boarding the bus at the same time that the plaintiff was exiting the bus , as plaintiff was about to reach the last step of the bus. Plaintiff testified at her deposition that on the night of the accident , the bus " wasn t packed" and that she signaled the driver that she wished to exit the bus on the corner of Merrick Road and Park Avenue. She remained in her seat as the bus reached the designated stop. After the bus pulled up to the curb and the doors to the front entrance opened she walked up to the front of the bus to exit through the front door. There were three steps to [* 2] exit/enter the bus , and plaintiff stepped with both teet down onto the second step. She testified that she was on that step alone and that no one was entering the bus at that time. PlaintitT testified that she then lifted her right foot with the intention of bringing it to the bottom step, but two men suddenly entered and , in pushing their way onto the bus , pushed plaintiff's left side causing her to fall off of the bus onto the sidewalk. Plaintiff testified that she did not strike any portion of the inside of the bus as she fell to the sidewalk. Plaintiff admitted during her deposition that the two men " were the cause of me falling. llhe second version of the happening of the accident is supported by the testimony of a non- party eyewitness , Ftachel Barrow. Ms. Barrow testified that she observed the plaintiff's incident occur at the bus stop where plaintiff was exiting the bus and where Ms. Barrow was waiting to enter the bus. Ms. Barrow testified that the bus pulled all the way to the curb at the bus stop and that there was only one other person waiting there. Ms. Barrows was standing directly in front of the doors that open " but a little towards the right side. She watched the plaintiff step down onto the second step and then pause. Ms. Barrows did not see anyone attempt to enter the bus during that time. She saw the plaintiff's left foot come otfthe second step and watched as plaintiff jumped over the last step onto the ground outside the bus. According to Ms. Barrow , when the plaintiff reached the ground , she landed on her teet and then grabbed her ankle and sat down on the ground. Ms. Barrows testified that plaintiff appeared to have jumped " purose. " Ms. Barrows did not see anyone push the plaintiff at anytime. In further support of its motion , defendant submits the deposition testimony of the bus driver , llhomas Polydore , who testified that he brought the bus to a complete stop at the bus stop located on Park Avenue and Merrick Road in Rockville Centre for the purpose of letting passengers on and off of the bus. He did not sec any incidcnt occur , but a passenger told him that a woman fell. He walked out of the bus and observed the plaintiff standing. He then asked if the woman was alright and called his dispatch. According to all of the testimony in this action , defendant argues that rcgardless of which version of the accident is accepted as true , MTA/Long Island Bus cannot be found liable for the plaintiff's accident or injuries. Defendant contends that the plaintiff's injuries were caused by third- party assailants or the plaintiff herself , but in no event were plaintiff's injuries caused by the defendant MTA/Long Island Bus. Defendant further argues that plaintiff has not produced any evidence that any act or omission by the defendant was a proximate cause of the plaintiffs [* 3] injuries. As such , defendant argues that it is entitled to summary judgment. In opposition , plaintiff fails to submit any evidence sufficient to demonstrate a triable issue of fact regarding the defendant' s liability. Plaintiff argues that the bus driver stopped fifteen feet shy of the bus stop and that the bus driver failed to follow proper procedure by failing to instruct the passengers who were boarding the bus to wait until the plaintiff or other disembarking passengers got off first. Plaintiff argues that the defendant's employee manual states that the bus driver is to " see that customers who exit II-om the fi' before allowing other customers to board. " ont arc off of the bus contends that the door and stairs were too narrow and that the two different versions of the happening of this incident are Plaintiff further sufficient to warrant a denial of summary judgment. Plaintiff has failed to submit any evidence that the delendant bears liability for plaintiff's accident or alleged injuries. There is no evidence that the bus driver had any notice of a dangerous condition or any notice that two men were about to enter the bus. Plaintiff , herself did not even see the two men until she was on the second step during her exit. In addition , there is no evidence , expert evidence or otherwise , to establish that the stairway leading out of the bus was " too narrow. " Additionally, in a negligence action , the defendant's internal rules or practices , which set forth a standard of care higher than the common law standards of reasonable (Gilson v. Metropolitan Opera 5 N. Y3d 574 , 841 N. 2d 747 (2005); Branham v. Loews 31 AD. 3d 319 , 8 19 N. YS. 2d 250 (1 s! Dept. 2006) all'd 8 N. Y3d 931 care are not admissible. 281 AD.2d 159 721 N. YS. 2d 56 (Ist Dept. 2(01)). Lastly, whether or not the bus stopped fifteen feet shy of the bus stop does not impart liability (2007); Brown v Metro. Transit Authority, onto the defendant as same was not a proximate cause of the plaintiff's accident. (See . Robins v. 58 AD. 3d 711 872 N. YS. 2d 164 (2d Dept. 2009)). llhe proponent of a summary judgement motion " must make a prima facie showing of Metropolitan Suburban Bus Authority, entitlement to judgment as a matter of law , tendering sufficient evidence to demonstrate the absence of any material issues of fact." 68 N. Y2d 320 (1986)). Once the movant has demonstrated a prima facie showing of entitlement to judgement (Alvarez v. Prospect Ho.W, , the burden shifts to the party opposing the motion to produce evidentiary proof in admissible forIl suffcient to establish the existence of material issues of a fact which require a trial of the action. (Zuckerman v. City of New York 49 N. Y2d 557 (1980)). Contrary to plaintiff's contentions defendant has made a prima facie showing of entitlement to summary judgment by tendering , the [* 4] evidence that the sole proximate cause of the plaintifPs injury was the intentional or negligent conduct of the two men entering the bus , or the plaintiffs own negligence , and that negligence of the driver , if any, merely furnished an occasion for the injury- producing event , which was 40 AD. 3d 676 (Culmone v. New York City Transit Authority, unforeseeable as a matter of law. 835 N. YS. 2d 689(2d Dept. 2007). It has also been held that " it cannot be said that the use of the front door for alighting, as well as boarding, in and of itself constitutes negligence. F(fth Avenue Coach Lines 28 AD. 2d 266 , 284 N. (Lifshitz v. 2d 470 (1 sl Dept. 1967)). While there can be more than one proximate cause of an occurrence , there is no evidence that any action or inaction by the defendant or the bus driver was a proximate cause ofthe accident or alleged injuries herein. Liability may not be imposed upon a party who merely furnished the condition occasion for the occurrence of the event , but was not one of its causes. v. City of New York 40 N. Y2d 496 387 N. YS. 2d 92 (1976); 835 N. YS. 2d 653 (2d Dept. 2007); 137 , 139 (2d Dep Gerrity v. t 2002); Siegel v. or (See generally, Sheehan Wechter v. Kelner 40 AD. 3d 747 Boedigheimer 294 AD. 2d 560 , 562 , 743 N. Dauber v. Stone 76 AD. 3d 699 907 N. S.2d 291 (2d Dept. 2010); Muthana 7 N. Y3d 834 824 N. YS.2d 206 (2006)). To carr the burden of proving a prima facie case , the plaintiff must generally show that a defendant' s negligence was a substantial cause of the events which produced the injury. (Rice v. Fuller 267 AD.2d 292 , 700 N. YS.2d 722 (2d Dept. 1999)). Plaintiff is unable to do so here and there has been no evidence presented to raise a triable issue of fact sufficient to defeat defendant' s prima facie showing of entitlement to summary judgment on liability grounds. Accordingly, defendant' s Dated: October 13 Cc: motion for summary judgment is granted. 2011 Zuklukiewicz , Puzo & Morrissey, LLP 2701 Sunrise Highway, Suite 2 O. Box 389 Islip Terrace , NY 11752 Law Offces of Gregory .r. Parisi 600 Old Country Road , Suite 410 Garden City, NY 11530 ENTERED OCT 17 2011 NASSAU COUNTY S OFF'Cr: COUNTY CLERK'

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