Flores v Westchester County Bee Line

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Flores v Westchester County Bee Line 2017 NY Slip Op 33506(U) May 17, 2017 Supreme Court, Westchester County Docket Number: Index No. 63593/15 Judge: Mary H. Smith Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: WESTCHESTER COUNTY CLERK 05/17/2017 01:03 PM NYSCEF DOC. NO. 40 INDEX NO. 63593/2015 RECEIVED NYSCEF: 05/17/2017 DECISION AND ORDER ORDER DECISION commence the statutory statutory To commence period of appeals appeals as of right right period (CPLR 5513[a]), 5513[a)), you are advised advised (CPLR serve a copy copy of this this Order, Order, to serve with notice notice of of~ntry, upon all entry, upon with parties. ' parties. SUPREME COURT COURT OF THE THE STATE STATE OF NEW NEW YORK SUPREME YORK lAS PART, PART, WESTCHESTER WESTCHESTER COUNTY COUNTY IAS Present: HON. HON. MARY MARY H. SMITH SMITH Present: Supreme Court Court Justice Justice Supreme --------------------:--------------------------------------------------------X --------------------7--------------------------------------------------------X LAURA FLORl;S, FLORI;S, LAURA Plaintiff, Plaintiff, MOTION DATE: DATE: 5/12/17 5/12/17 MOTION INDEX NO.: 63593/15 63593/15 INDEX -against-againstWESTCHESTER COUNTY COUNTY BEE LINE, LINE, COUNTY COUNTY OF WESTCHESTER WESTCHESTER and HERBERT PORTORREAL, WESTCHESTER HERBERT PORTORREAL, Defendants. Defendants. _____________________ ------------------------~--------------------------------X --------------------X --------------------------------The following following papers papers numbered numbered 1 to 7 were were read on this motion motion by defendants defendants for for The summary judgment dismissing the complaint. complaint. summary judgment dismissing Papers Numbered Numbered Papers Notice of Motion Motion -Affirmation - Affirmation (Phelan) (Phelan) -Affidavits - Affidavits (Meyer, (Meyer, Hermance) Hermance) - Exhs. (A-J) ... 1-4 Notice Answering (Rosenthal) - Exhs. (A-B) .............................................,~........... 5-6 Answering Affirmation Affirmation (Rosenthal) Replying Affirmation (Phelan) ........... •............ ...................... ... ........... ........................... 7 Replying Affirmation (Phelan) the foregoing foregoing papers, papers, it is Ordered Ordered and adjudged adjudged that that this motion motion by Upon. the defendants for for summary summary judgment dismissing the complaint complaint is disposed disposed of of as follows: follows: defendants judgment dismissing This is a negligence negligence action action in which which plaintiff plaintiff seeks seeks to recover recover for for personal personal injuries injuries This II allegedly had sustained, sustained, on October October 30, 30,2014, approximately 1 1:10 she allegedly 2014, at approximately :10 p.m., at which which . . -1- [* 1] 1 of 14 /..1) FILED: WESTCHESTER COUNTY CLERK 05/17/2017 01:03 PM NYSCEF DOC. NO. 40 INDEX NO. 63593/2015 RECEIVED NYSCEF: 05/17/2017 time she had been been a passenger passenger on a bus owned owned by defendant defendant Westchester Westchester County County Bee time leased by defendant defendant County County of Westchester, Westchester, and driven defendant Portorreal. Portorreal. At Line, leased driven by defendant time of of the accident, the bus had been traveling traveling eastbound, most lane on the time the accident, eastbound, in the right most Street, near near its intersection intersection with Court Court Street, Street, in downtown downtown White White Plains. Plains. Each lane Main Street, of. Main Main Street Street in this this area area is separated separated by solid white white lines, and the roadway is straight. straight. of the roadway Weather conditions conditions at the time time had been clear clear and dry. After After the pick Weather the bus has stopped stopped to pick plaintiff as a passenger, passenger, the bus had begun begun to drive drive away away when incident causing causing up plaintiff when the incident plaintiffs injuries injuries allegedly allegedly had occurred. occurred. plaintiff's Plaintiff had testified testified at the 50-H hearing hearing that that she had boarded boarded the bus at Main Plaintiff Street and Court Court Street, that she had paid her fare, and that that she had begun begun walking walking Street Street, that towards the rear rear of the the bus, intending intending to sit in the first first row of forward facing seats seats behind behind forward facing towards driver. Plaintiff Plaintiff had testified testified that that approximately approximately two seconds later, during during which which time time the driver. two seconds taken approximately approximately 3 steps, steps, the bus "took "took off, it braked braked suddenly, suddenly, and stopped." stopped." she had taken Plaintiff had not been been holding holding on to any pole at that that time. Plaintiff Plaintiff had grabbed grabbed onto onto a poll Plaintiff attached to a seat seat but she nevertheless nevertheless had fallen fallen in the the aisle, although although not all the way way attached onto the floor, striking striking various parts of her body. Plaintiff Plaintiff had heard heard the the driver, driver, defendant defendant onto various parts P6rtorreal, tell someone someone else else thathe thathe had been cut off, but plaintiff plaintiff herself herself had not not observed observed P6rtorreal, traffic conditions conditions either either before before or at that time of of her fall. Plaintiff's Plaintiff's deposition deposition testimony traffic that the time testimony been consistent consistent with her 50-H hearing hearing testimony. had been testimony. Defendant Portorreal Portorreal had testified testified at his deposition deposition that that he had stopped the bus at Defendant stopped the Main Street/Court Street/Court Street Street bus stop stop for approximately 30 seconds seconds to allow allow plaintiff, plaintiff, the Main for approximately apparently the only only passenger passenger at the stop, to board. board. Defendant Defendant Portorreal Portorreal had closed closed the apparently bus' doors, view mirror, mirror, and had proceeded the speed doors, had checked checked his left side side view proceeded to drive drive at the speed -2-2- [* 2] 2 of 14 FILED: WESTCHESTER COUNTY CLERK 05/17/2017 01:03 PM NYSCEF DOC. NO. 40 INDEX NO. 63593/2015 RECEIVED NYSCEF: 05/17/2017 of approximately approximately 2 to 3 miles miles per per hours; hours; Portorreal Portorreal had testified testified that that he had intended intended to of continue driving driving straight straight down down Main Street Street in the the right right most most lane. lane. Within Within 2 to 3 seconds seconds continue of his starting starting to move move the the bus, having having traveled traveled a distance distance of of approximately approximately 1 10 feet, of O feet, defendant Portorreal Portorreal had observed observed to his front front left left a Lincoln Lincoln Town Town car car (the "car"), "car"), traveling traveling defendant speed of of approximately approximately 20 to 25 miles miles per per hour, suddenly suddenly cross cross over over the the lane's lane's white white at a speed directly into into the the path path of of the the bus. Defendant Defendant Portorreal Portorreal had testified testified that that the the car car had line directly side-swiped the the bus, perhaps perhaps a door door from from the the car's car's right right side side having having struck struck the the bus' bus' left side-swiped front bumper, bumper, and that that the the car car then, then, without without ever ever having having stopped, stopped, had continued continued to make make front right turn, turn, directly directly in front front of of the the bus, onto onto Court Court Street. Street. According According to defendant defendant its right Portorreal, he first first had observed observed in his left side side view view mirror mirror the the allegedly allegedly offending offending Town Town Portorreal, car in the the lane lane alongside alongside of of the the bus at the the time time that that he had started started to drive drive away away from from the the car stop and that that the the car car had been been traveling traveling straight straight at that that time. time. Defendant Defendant Portorreal Portorreal bus stop testified that, when when he first first saw saw the the Town Town car car begin begin to cross cross over, over, he immediately immediately had had had testified the bus' bus' brakes brakes and the the bus had come come to a complete complete stop. stop. Defendant Defendant Portorreal Portorreal did hit the not testify testify that that he had experienced experienced any any actual actual impact impact between between the the bus and the the Town Town car, not but he had testified testified that, that, after after he had stopped stopped the the bus and had inspected inspected the the outside outside of of the the but bus he had observed observed a scratch scratch on the the bumper. bumper. Defendant Defendant Portorreal Portorreal had not not observed observed bus plaintiff's fall in the the bus aisle. aisle. plaintiff's The Court Court has has reviewed reviewed the the submitted submitted surveillance surveillance CD capturing capturing the the five five video video The cameras filming filming on board board the the bus. It appears appears that that this this black black Town Town car, which which had been been cameras traveling in the lane immediately immediately to the left of the lane of the bus' lane, at a speed speed faster faster than than the bus, traveling crossed over over the white had crossed white solid line, and had turned turned approximately approximately 45 degrees degrees to the right immediately in front moving bus. immediately front of the the moving No actual physical impact impact between between the two actual physical -3-3- [* 3] 3 of 14 FILED: WESTCHESTER COUNTY CLERK 05/17/2017 01:03 PM NYSCEF DOC. NO. 40 INDEX NO. 63593/2015 RECEIVED NYSCEF: 05/17/2017 vehicles video. This This black vehicles is apparent apparent on the video. black car had not stopped, stopped, having having continued continued to make turn onto Street. The also depicts walking down make its right turn onto Court Court Street. The video video also depicts plaintiff's plaintiff's walking down the bus aisle time, plaintiff's aisle while while the bus begins begins to move move forward forward and, within within a moment's moment's time, plaintiff's body body lurching, lurching, causing causing plaintiff plaintiff to grab grab for for a pole and her being being caused caused to collapse collapse before before she recovers recovers and is able able to take take a bus seat. Photographs Photographs submitted submitted at bar bar depict depict a visible visible white white scratch scratch mark mark on the bus' left front front bumper. bumper. Defendants for summary summary judgment judgment dismissing dismissing the action. action. Defendants presently presently are moving moving for Contrary that defendant Contrary to plaintiff's plaintiff's assertion assertion that defendant Portorreal Portorreal had been been negligent negligent in the argue that that the evidence operation operation of the the bus, defendants defendants argue evidence at bar, including including Portorreal's Portorreal's footage from testimony, testimony, plaintiff's plaintiff's testimony, testimony, study study of the interior interior surveillance surveillance footage from the bus and inspection sole cause the accident inspection of the accident accident site, establish establish that that the sole cause of of the accident had been the failure to yield the unsafe unsafe lane change change that that had been made made by the operator of failure yield and the the operator of the unidentified suddenly had crossed crossed over traffic just just as the the bus unidentified car car that that suddenly over into the bus' lane lane of of traffic begun to move move forward. forward. Defendants Defendants claim claim that that plaintiff's plaintiff's fall in the bus aisle had begun aisle had occurred as a result result of impact from the Town car and her not having having held on to of the impact Town car occurred anything at the the time time of of impact, impact, and not as a result result of of Portorreal's Portorreal's having having applied brakes anything applied the brakes ofthe negligent manner. ofthe bus or his otherwise otherwise having having driven driven in a negligent manner. support of of their their motion, motion, defendants defendants offer expert affidavit affidavit of of Richard Richard offer the expert In support Hermance, an accident accident reconstructionist reconstructionist certified certified by the National National Accreditation Hermance, Accreditation Commission of Traffic Traffic Accident Accident Reconstruction. Reconstruction. Mr. Hermance Hermance has reviewed reviewed the police police Commission report, photographs photographs of of the the bus, the the interior interior surveillance surveillance footage footage from from the the bus, and the the report, parties' testimony, testimony, and he had conducted conducted his own on sight sight investigation. investigation. Mr. Hermance Hermance parties' states that that the the video, video, played played on 1/8 speed, speed, shows shows that that plaintiff plaintiff "lost "lost balance balance and fell as this this states -4-4- [* 4] 4 of 14 FILED: WESTCHESTER COUNTY CLERK 05/17/2017 01:03 PM NYSCEF DOC. NO. 40 INDEX NO. 63593/2015 RECEIVED NYSCEF: 05/17/2017 minimal Town car. Mr. Hermance, Hermance, using two two minimal contact contact was was made" made" between between the bus and the Town of reaction time and the distinct scientific methods calculate Portorreal's speed of distinct scientific methods to calculate Portorreal's speed reaction time acceleration that plaintiff just as the the car car had made acceleration rate, has determined determined that plaintiff had begun begun to fall just made contact time from from when when the Town Town car entered entered the right lane up until until contact with the the bus, that that the time impact second, and that that there there was was nothing nothing defendant defendant Portorreal impact had been been less than than one one second, Portorreal could avoided the crash. crash. could have have done done to have have avoided opinion with a It is Mr. Hermance's Hermance's opinion that the the cause cause of this this accident accident reasonable reasonable degree degree of of scientific scientific and professional professional probability probability that had been change by the the car's car's operator, operator, and that that plaintiff been the failure failure to yield yield and unsafe unsafe lane change plaintiff car's impact plaintiff's failure failure had fallen fallen down down on the bus as a result result of the car's impact with the bus and plaintiff's to have the time time that that the bus had been struck. According According to Mr. have held on to anything anything at the been struck. Hermance, the operation operation of the bus and Hermance, defendant defendant Portorreal Portorreal had not been negligent negligent in the accident. his actions actions had not contributed contributed to the happening happening of the accident. Based foregoing, and additionally additionally given given that that defendant defendant Portorreal Portorreal had the Based upon upon the the foregoing, entitled to have that the the Town Town car's car's.driver would obey obey right of way way and had been been entitled have presumed presumed that ,driver would all traffic argue that that defendant defendant Portorreal traffic laws, defendants defendants argue Portorreal as a matter matter of law law had operation of the bus, that that his actions actions in no way way had exercised exercised reasonable reasonable care care in the operation contributed alleged injuries, that defendants defendants thus thus are contributed to the the accident accident and plaintiff's plaintiff's alleged injuries, and that entitled to summary summary judgment entitled judgment dismissing dismissing the complaint. complaint. Plaintiff dispositive motion, claiming that that defendant defendant Portorreal's Plaintiff opposes opposes defendants' defendants' dispositive motion, claiming Portorreal's negligent operation operation of precipitated to the of the the bus had caused caused her "to be violently violently precipitated the ground," ground," negligent result of of which which she she has has sustained sustained multiple multiple serious serious injuries. injuries. Plaintiff Plaintiff submits submits that that as a result defendants are not entitled entitled to summary summary judgment because they they have have not demonstrated demonstrated defendants judgment because . . that there there ever ever had been been actual actual physical physical contact contact between between the the bus bus and the the Town Town car. that -5-5- [* 5] 5 of 14 FILED: WESTCHESTER COUNTY CLERK 05/17/2017 01:03 PM NYSCEF DOC. NO. 40 INDEX NO. 63593/2015 RECEIVED NYSCEF: 05/17/2017 Plaintiff testified that, after after the the alleged alleged impact, which Plaintiff notes notes that that defendant defendant Portorreal Portorreal had testified impact, which Portorreal testified he had not felt, he had exited exited the bus and had observed observed only only a Portorreal had testified white bumper, which which scratch, scratch, plaintiff plaintiff submits, submits, should should have have white colored colored "scratch" "scratch" on the bus' bumper, , scratch in fact fact had occurred occurred as a result of the black Town car been dark dark in color color if said scratch result of black Town having that defendant defendant Portorreal also had testified testified hewing struck struck the bus. Plaintiff Plaintiff notes notes that Portorreal himself himself also of the alleged alleged impact, . that that he had not felt the bus shake shake or move side at the time time of felt the move side to side impact, which argues is consistent consistent with the bus not actually actually having struck which testimony testimony plaintiff plaintiff argues having been struck by the Town Town car. Additionally, plaintiff argues that that defendants defendants have failed to establish establish that that Portorreal Portorreal Additionally, plaintiff argues have failed operation of of the bus given given his own admission admission that that he had had used reasonable reasonable care care in the operation the adjacent adjacent lane until one one second second before failed Town car car in the failed to timely timely see the Town before impact, impact, notwithstanding view had been clear clear and unobstructed, notwithstanding that that Portorreal's Portorreal's view unobstructed, and the defendant surveillance that the Town Town car had been visible in defendant surveillance video video establishes establishes that been moving moving and visible Portorreal's time that that Portorreal started to drive drive the bus. Portorreal's rear view view mirror mirror at the time Portorreal had started Plaintiff submits that observed the Town Town car car before Plaintiff submits that if Portorreal Portorreal properly properly had observed before moving moving his bus and had recognized the potential "before accelerating accelerating recognized the potential hazard hazard the car had presented presented "before could have have avoided avoided this incidentcompletely." his bus he could this incident completely." Moreover, plaintiff plaintiff argues argues that Portorreal had acted Moreover, that defendant defendant Portorreal acted contrary contrary to his training and the the Operator's Operator's Handbook Handbook which instructs and requires requires drivers training which instructs drivers to do everything everything they avoid sudden sudden stops, never compete they can to to avoid stops, to anticipate anticipate situations situations and to never compete with other other vehicles for for the the right right of of way. way. Additionally, Additionally, plaintiff plaintiff argues argues that that defendant defendant Portorreal Portorreal also also vehicles negligently begun to move move the the bus bus before before plaintiff plaintiff had crossed crossed the the yellow yellow striping striping on negligently had. begun ', . . the floor floor behind behind the the bus bus driver's driver's seat seat and that that he had failed failed to wait wait until until she she had been been the ·-6-6- [* 6] 6 of 14 FILED: WESTCHESTER COUNTY CLERK 05/17/2017 01:03 PM NYSCEF DOC. NO. 40 INDEX NO. 63593/2015 RECEIVED NYSCEF: 05/17/2017 safely seated. safely seated. from Robert Plaintiff supports supports her her opposition opposition with affidavit from Robert D. Klingen, Klingen, an expert expert with an affidavit Plaintiff formulating his expert certified in accident accident reconstructio reconstruction.n. Mr. Klingen, Klingen, in formulating expert opinion, opinion, has has certified Supervisor's Report, reviewed the the Police Police Accident Report, the Incident Incident Report, Report, the the Supervisor's Report, Liberty Liberty Accident Report, reviewed at taken at Lines Condition Condition Report, Report, videos videos from from the the on-bus on-bus cameras, cameras, copies copies of of photographs photographs taken Lines of particulars, the bill of testimony, the the plaintiff's 50-h hearing testimony, particulars, Liberty Liberty Lines Lines 50-h hearing scene, plaintiff's accident scene, the accident Training Program Operator Training Safety Liberty Lines Lines Transit, Bus Operator Program material, material, Transit, Inc. Bus the Liberty Alerts, the Safety Alerts, of affidavit of the affidavit testimony and the deposition testimony including the Operator's Handbook, Handbook, the parties' parties' deposition the Operator's including the defendants' expert, Mr. Hermance. Hermance. Additionally, Klingen personally personally had inspected inspected the Additionally, Mr. Klingen defendants' expert, accident location. location. accident does not Mr. Klingen Klingen opines opines that that the white scratch on the the bus' bus' bumper bumper does not correlate correlate to white scratch Town car, black Town from the the type type of of damage damage that that would have been been caused caused by an impact impact from the black would have the that the the video video recording recording does does not not reveal reveal any any damage side of of the the Town Town car, and and damage to the right side that fact had vehicles in fact two vehicles the two that the finding that the finding that physical evidence supporting the evidence supporting there is no physical that there defendant visible to defendant clearly visible car had been collided. Further, Mr. Klingen Klingen notes notes that been clearly Town car the Town that the collided. Further, stated that, as stated drive, and that, Portorreal when proceeded to drive, doors and proceeded the bus' doors closed the when he had closed Portorreal Defensive Participant Manual Manual for Instructors' Course Course in Bus Maneuvering Maneuvering and Defensive the Instructors' for the the Participant in the Driving published published by the Transportation Safety Institute, Institute, bus bus operators operators must must be able able to on Safety the Transportati Driving you to cross recognize hazards hazards and they they should should "Expect "Expect the car alongside alongside you cross your your path and recognize make a right right turn." turn." Had defendant defendant Portorreal Portorreal properly properly recognized recognized that that the the Town Town car car make that "he could presented a potential potential hazard, hazard, Mr. Klingen Klingen opines opines that could have have used proper proper caution caution. · presented curb." the curb." before pulling pulling away from the away from before that states that also states video, Mr. Klingen Additionally, having reviewed reviewed the Klingen also on-board video, the on-board Additionally, having - 7 '-7'- [* 7] 7 of 14 FILED: WESTCHESTER COUNTY CLERK 05/17/2017 01:03 PM NYSCEF DOC. NO. 40 INDEX NO. 63593/2015 RECEIVED NYSCEF: 05/17/2017 defendant started to move d~fendant Portorreal Portorreal had started move the bus within within one second second after after plaintiff plaintiff had paid her fare walked across yellow standee standee line and had a fare and before before plaintiff plaintiff had walked across the yellow reasonable that, because reasonable opportunity opportunity to have taken taken a seat. He maintains maintains that, because the bus had not been for plaintiff been equipped equipped with handrails handrails for plaintiff to have have braced braced herself, herself, defendant defendant Portorreal Portorreal waited to should "more diligent about the safety should have have been been "more diligentabout safety of his passengers" passengers" and have have waited move plaintiff had been safely safely seated. move the bus until after after plaintiff seated. In sum, failing to wait sum, it is Mr. Klingen's Klingen's opinion opinion that that defendant defendant Portorreal, Portorreal, by failing wait until until plaintiff seat before follow the plaintiff had taken taken a seat before his continuing continuing to drive drive the bus, had failed failed to follow guidelines guidelines of of the Commercial Commercial Driver Driver License License Manual Manual and the Instructors Instructors Course Course in Bus Maneuvering that had been provided training, Maneuvering and Defensive Defensive Driving Driving that provided to him as part part of his training, that seconds plaintiff's been avoided," that had he simply simply waited waited 3 to4 to 4 seconds plaintiff's injuries injuries "would "would have have been avoided," and that the "improper, which Mr. Portorreal that the "improper, unsafe unsafe and unreasonable unreasonable manner manner in which Portorreal operate operate the bus was was the significant significant causal causal factor factor that that led to Ms. Flores' Flores' injuries." injuries." Based upon upon the foregoing, plaintiff maintains maintains that that there there necessarily necessarily exists exists a triable triable Based foregoing, plaintiff issues of fact regarding regarding whether whether any such contact in fact fact had occurred, occurred, and that that there there of fact such contact issues further exists exists triable triable issues issues of of fact defendant Portorreal Portorreal reasonably reasonably could could further fact as to whether whether defendant have avoided avoided making making the sudden sudden stop stop and whether operated the bus in a have whether he had operated reasonably safe safe manner. manner. reasonably Initially, the Court Court notes notes that that defendants, defendants, for reason(s) not readily readily apparent Initially, for reason(s) apparent to this their answer, Court, Court, have have not pleaded pleaded the the emergency emergency doctrine doctrine defense defense in their answer, nor nor have have they they argued its application application at bar. See See Bello Bello v. Transit Transit Authority Authority of of New New York York City. City, 12 A.D.3d A.D.3d argued 58,61 (2nd Dept. Dept. 2004). 2004). Pursuant Pursuant to the the emergency emergency doctrine, doctrine, "when "when an actor actor is faced faced with with 58, 61 {2 sudden and unexpected unexpected circumstance circumstance which which leaves leaves little or no time time for for thought, thought, a sudden -8-8- [* 8] 8 of 14 FILED: WESTCHESTER COUNTY CLERK 05/17/2017 01:03 PM NYSCEF DOC. NO. 40 INDEX NO. 63593/2015 RECEIVED NYSCEF: 05/17/2017 deliberation or consideration, ,consideration, or causes causes the actor actor to be reasonably reasonably so disturbed disturbed that that the the deliberation actor must must make make a speedy speedy decision decision without without weighing weighing alternative alternative courses courses of of conduct, conduct, the the actor actor may may not not be negligent negligent if the the actions actions taken taken are reasonable reasonable and prudent prudent in the the actor emerge'ncy context." context." Rivera Rivera v. New New York York City Tr. Auth., Auth., 77 N.Y.2d N.Y.2d 322, 327 {1991); (1991); see see emerge·ncy nd Dept. 2010). Evans V. v. Bosl, 75 A.D.3d AD.3d 491 (2nd 2010). The The doctrine doctrine routinely routinely is applied applied in Evans circumstances akin to that that presenting presenting at bar bar where where passengers passengers on buses buses allege allege that that they they circumstances been caused caused to fall as a result result of ofaa sudden sudden stop stop owing owing to the the bus having having been been cut cut off off had been another vehicle, vehicle, and defendants defendants routinely routinely are granted granted summary summary judgment dismissing by another judgment dismissing complaints based based thereon. thereon. complaints See Tarnavska Tarnavska v. Manhattan Manhattan and Bronx Bronx Surface Surface Transit Transit See nd Dept. 2013); Operating Authority, 1079 {2 (2nd 2013); Marri Marri v. New New York York City City Transit Transit Operating Authority, 106 AD.3d A.D.3d 1079 nd nd Dept. 2013); A.D.3d 699 699 {2 (2nd 2013); Eng v. MTA MTA Bus Co., 124 A.D.3d AD.3d 833 833 (2nd Authority~ 106 A.D.3d nd Dept. 2010). Dept. 2015); 2015); Miloscia Miloscia v. New New York York City City Bd. of of Educ., Educ., 70 A.D.3d AD.3d 904 904 (2nd 2010). Dept. defendants argued argued the the emergency emergency doctrine, doctrine, this this Court Court would would have have granted granted Had defendants them summary summary judgment thereon dismissing dismissing the the complaint, complaint, finding finding that that they they prima prima facie facie them judgment thereon established their their entitlement entitlement to to judgment matter of of law law by demonstrating demonstrating that that the the had established judgment as a matter action of of defendant defendant Portorreal Portorreal in braking braking abruptly abruptly to avoid avoid a collision collision with with a car car that that had action suddenly pulled pulled out out in front front of of him him had been been reasonably reasonably prudent prudent in an emergency emergency situation situation suddenly of his own making. making. not of As a second second initial initial matter·, matter', the the Court Court notes notes that that defendants defendants vigorously vigorously argue argue and As they have have submitted submitted evidence evidence supporting supporting the the finding finding that that there there had been been physical physical contact contact they between the the bus and the Town whereas plaintiff plaintiff equally equally vigorously argues and submits submits between Town car, whereas vigorously argues evidence supporting supporting the finding finding that there had not been any any actual actual contact contact between between the evidence that there vehicles. As a corollary corollary to each e'ach party's party's respective respective position, position, the parties parties also also dispute dispute two vehicles. -9-9- [* 9] 9 of 14 FILED: WESTCHESTER COUNTY CLERK 05/17/2017 01:03 PM NYSCEF DOC. NO. 40 INDEX NO. 63593/2015 RECEIVED NYSCEF: 05/17/2017 between impact between actual impact the actual of the result of whether injuries as a result alleged injuries her alleged sustained her' plaintiff had sustained whether plaintiff the bus. of the braking of hard braking the sudden and hard the sudden of the result of vehicles or as a result the vehicles facts the facts On the discern fails to discern Court fails this Court determination, this presenting, , and for purposes of negligence determination, this negligence of this for purposes presenting falling is the actual why the why issue of of physical physical contact contact is relevant relevant or why actual cause cause of of plaintiff's plaintiff's falling is the issue why the decisive issue of negligence.. defendants' negligence of defendants' the issue decisive on the summary for summary defendant moving Resorting to a regular regular negligence negligence analysis, moving for analysis, a defendant Resorting was that he facie, that establishing, prima of establishing, judgment negligence action burden of prima facie, he was the burden action has the judgment in a negligence Gomez, 138 Cook v. Gomez, of Cook See Estate not at happening of Estate of 138 accident. See subject accident. the subject of the the happening fault in the at fault not nd (2nd nd Dept. 2016); 738, 738-739 (2 A.D.3d 738,738-739 ns v. Long, 136 AD.3d Fitzsimmons AD.3d 2016); Fitzsimmo 676 (2nd 675, 676 A.D.3d 675, entitled right-of-way is entitled the right-of-way with the traveling with Dept. 2016). vehicle traveling motor vehicle of a motor operator of While an operator 2016). While Dept. the with the traveling with operator traveling the operator to traffic laws, the the traffic obey the drivers will obey other drivers that other assume that to assume other with other colliding with avoid colliding care to avoid reasonable care right-of-way use reasonable duty to use has a duty nevertheless has right-of-way nevertheless nd Dept. 2016); Gardenia, 138 Chen v. Cardenia, 2016); Chen vehicles. 140 AD.3d 138 736 (2nd A.D.3d 736 Twizer v. Lavi, 140 See Twizer vehicles. See nd Dept. 2014). nd Dept. 2016); 858 (2nd A.D.3d 857, 858 Tiao, 123 AD.3d AD.3d 1126, 1129 1129 (2nd 2014). Arias v. Tiao, 2016); Arias A.D.3d 1126, have facie have that defendant Based upon upon the Court finds defendantss prima prima facie finds that the Court foregoing, the the foregoing, Based defendant Portorreal that defendant submitting proof demonstrated proof that Portorreal judgment by submitting entitlement to judgment their entitlement demonstrated their ently had that he non-neglig the incident, of the had been been obeying laws at the incident, that non-negligently had time of the time traffic laws the traffic obeying the had when he only 2 to 3 miles of only speed of been driving bus within lane at a speed miles per per hour hour when he traffic lane within his traffic the bus driving the been and suddenly and that suddenly car that town car colliding with a town had been been forced brake in an attempt avoid colliding attempt to avoid forced to brake had that of his bus, and that front of directly in front unlawfully had crossed lane and turned turned right directly the lane over the crossed over unlawfully change the unsafe and the yield and failure to yield the been the unsafe lane lane change the failure accident had been the accident of the cause of sole cause the sale had suddenly had that suddenly car that Town car unidentified Town that the unidentified of the operator of the operator made by the been made that had been forward. move forward. begun to move bus had begun the bus just as the crossed traffic just of traffic lane of bus' lane the bus' into the over into crossed over -10-10- [* 10] 10 of 14 FILED: WESTCHESTER COUNTY CLERK 05/17/2017 01:03 PM NYSCEF DOC. NO. 40 INDEX NO. 63593/2015 RECEIVED NYSCEF: 05/17/2017 The burden shifted to plaintiff triable issue of fact fact with respect The burden then then had shifted plaintiff to raise a triable issue of respect to defendant failed to operate operate the bus in a non-negligent defendant Portorreal's Portorreal's having having failed non-negligent manner. manner. See, Zuckerman v. City of of New e.g., Alvarez v. Prospect e.g .. Alvarez Prospect Hospital, HospitaL 68 N.Y.2d N.Y.2d 320, 324 (1990); (1990); Zuckerman New York, 49 N.Y.2d York, N.Y.2d 557, 562 (1980). (1980). This she has failed failed to do. This Plaintiff does does not present present any of the accident accident defendant defendant Plaintiff any evidence evidence that that at the the time time of Portorreal excess of 3 miles alone that that he had been Portorreal had been been traveling traveling in excess miles per per hour, let alone been speeding, other way had been driving driving carelessly, carelessly, unsafely speeding, or that that he in any any otherway unsafely or recklessly. recklessly. While it appears the video video that that Portorreal started to drive drive the bus before While appears from from the Portorreal may may have have started before striping on the floor, said circumstance circumstance is irrelevant plaintiff plaintiff had walked walked paSf past the yellow yellow striping irrelevant given alleged injuries occur while while plaintiff given that that the incident incident causing causing plaintiff's plaintiff's alleged injuries did not occur plaintiff had been standing standing in front of that that passenger passenger line. Therefore, negligence, if any, had not front of Therefore, said negligence, been been the proximate proximate cause cause of of plaintiff's plaintiff's injuries. injuries. been Moreover, characterization of Portorreal's testimony, the Court Court Moreover, contrary contrary to plaintiff's plaintiff's characterization Portorreal's testimony, finds based based upon upon a fair fair reading reading of Portorreal had testified looked in finds of same same that that Portorreal testified that that he had looked side mirror mirror before before moving moving the bus from plaintiff's bus stop, his left side from plaintiff's stop, that that he had observed observed the offending Town Town car car traveling been offending traveling alongside alongside of the bus, and that that said vehicle vehicle had been proceeding straight straight in its lane. This instance where proceeding This had not been an instance where the the driver driver of of the bus simply had failed failed to observe observe that present to be observed. Plaintiff points points simply that which which had been present observed. Plaintiff record which which otherwise otherwise reasonably reasonably should have alerted Portorreal that should have alerted Portorreal that the to "nothing nothing in the record Town car he had observed lane had intended intended to cut Town observed in the adjacent adjacent lane cut the bus off off and turn right at Court Court Street. Street. right Further, it is well well established established that that in order order to demonstrate demonstrate a prima prima facie facie case case of of Further, negligence against against a common common carrier carrier for for injuries injuries sustained sustained by a passenger passenger as a result result of of negligence -11-11- [* 11] 11 of 14 FILED: WESTCHESTER COUNTY CLERK 05/17/2017 01:03 PM NYSCEF DOC. NO. 40 INDEX NO. 63593/2015 RECEIVED NYSCEF: 05/17/2017 movement of of the vehicle, vehicle, which which is plaintiff's plaintiff's position position herein, herein, a plaintiff plaintiff must must present present the movement objective evidence evidence of of the the force force of the stop stop sufficient sufficient to establish establish an inference inference that that the objective offending stop stop had been extraordinary extraordinary and violent, violent, of a different different class class than than the the jerks and offending jerks and jolts commonly experienced experienced in city bus travel travel and, therefore, therefore, attributable attributable to the negligence negligence jolts commonly of defendant. See See Urquhart Urquhart v. New New York York City Tr. Auth., N.Y.2d 828, 828,829-830 (1995); Auth., 85 N.Y.2d 829-830 (1995); ofdefendant. nd Dept. 2012); Gioulis v. MTA MTA Bus Co., 94 AD.3d 812-813 (2nd 2012); Rayford Rayford v. County County of A.D.3d 811, 812-813 Gioulis nd Dept. 2009); Westchester, 59 AD.3d 508-509 (2nd 2009); Golub Golub v. New New York York City City Tr. Auth., Westchester, A.D.3d 508, 508-509 Auth., nd Dept. 2007). 2007). A plaintiff's plaintiff's claim, claim, as here, that that the bus driver driver had 40 AD.3d A.D.3d 581, 582 (2nd taken off off fast fast and suddenly suddenly had stopped, stopped, by itself, does does not raise raise any any issue issue of fact taken fact regarding the the bus driver's driver's failure exercise reasonable reasonable care. See Urquhart Urquhart v. New New York York regarding failure to exercise Transit Authority, supra, 85 N.Y.2d N.Y.2d at 830; Guadalupe Guadalupe v. New New York York City City Transit Transit City Transit Authority. supra, nd Dept. 2012). Authority, 717 (2nd 2012). Authority. 91 AD.3d A.D.3d 716, 717 Plaintiff has failed failed to offer offer any evidence evidence demonstrating demonstrating that that the the bus driver driver had made made Plaintiff "unusual or violent violent stopping" stopping" of the bus that that had been been traveling traveling 2 to 3 miles miles per per hour, an "unusual that his stop had been been of a different different class class than commonly commonly experienced experienced in city bus travel; travel; or that consequently, this this Court Court must must agree agree that that defendants defendants bears bears no liability liability therefore. therefore. PJI consequently, 92:165; Bethel Bethel v. New New York York City Transit Transit Auth., N.Y.2d 348 (1998); (1998); Rayford Rayford v. County County §2:165; Auth., 92 N.Y.2d nd Dept. 2009); Westchester, 59 AD.3d 2009); see, also also Banfield Banfield v. New New York York City A.D.3d 508, 509 (2nd of Westchester, nd Dept. 2007); Transit Authority, 2007); Taylor Taylor v. Westchester Westchester Street Street Transit Authority. 36 AD.3d A.D.3d 732 (2nd nd Dept. 1949); Transportation Co., Co .. Inc., 276 276 AD. 1949); cf. ct. Harris Harris v. Manhattan Manhattan and Bronx Bronx Transportation A.O. 874 (2nd Surface Transit Transit Operating Operating Autho'rity, (1stst Dept. 1988). 1988). Further Further supporting supporting Surface Autho·rity. 138 AD.2d A.D.2d 56 (1 this finding finding is the the fact fact that, that, although although plaintiff, plaintiff, the only only standing standing passenger passenger at the time, time, had this been caused caused to fall at the time time that that Portorreal Portorreal had applied applied the bus' bus' brake, brake, there there is no been -12- [* 12] 12 of 14 FILED: WESTCHESTER COUNTY CLERK 05/17/2017 01:03 PM NYSCEF DOC. NO. 40 INDEX NO. 63593/2015 RECEIVED NYSCEF: 05/17/2017 evidence evidence that that any any other other seated seated passengers passengers on the bus had fallen fallen out out of their their seats, seats, or had been been caused caused to move move abruptly abruptly in their their seats, seats, or had sustained sustained injuries injuries as a result result of of the bus having having been brought brought to a stop. Notwithstanding Notwithstanding plaintiff's plaintiffs contention contention to the contrary, contrary, plaintiff plaintiff had been been afforded afforded a reasonable reasonable opportunity opportunity to safely safely board board the bus. Defendant Defendant Portorreal Portorreal had not been been required wait until the plaintiff found a seat required to wait plaintiff had found seat before before proceeding, proceeding, and absent absent evidence evidence that the operation operation of the the bus had been extraordinary extraordinary and violent violent and of of a different different class class that than jerks and jolts jolts commonly than the jerks commonly experienced experienced in city bus travel, travel, plaintiff plaintiff failed failed to raise a triable triable issue issue of of fact fact in opposition opposition to the motion. motion. See See Garcia Garcia v. Sunny Sunny Transp. Transp. Services, Services, 99 nd Dept. nd Dept. 2012); A.D.3d 967 AD.3d 624 2012); McLeod McLeod v. County County of Westchester, Westchester, 38 A.D.3d 624 (2 nd A.D.3d 967 (2nd 2007). 2007). This action action is hereby hereby dismissed. dismissed. This /r2017 Dated: May, 1r2017 Dated: White White Plains, Plains, New New York York Y -13- [* 13] 13 of 14 . SMITH J.S.C. FILED: WESTCHESTER COUNTY CLERK 05/17/2017 01:03 PM NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 05/17/2017 . Harris Harris Beach Beach LLC Attys. Attys. For Defts. Defts. 445 445 Hamilton Hamilton Avenue, Avenue, Suite Suite 1206 White White Plains, Plains, New New York York 10601 Parker Parker Waichman Waichman LLP Attys. For Pitt. Attys. 6 Harbor Drive Harbor Park Drive Port Washington, Washington, New New York York 11050 11050 -14-14- [* 14] INDEX NO. 63593/2015 14 of 14

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