Black v. County of Dutchess

• Decision Date: 27 September 2011
• Citation: 87 A.D.3d 1097,930 N.Y.S.2d 64,2011 N.Y. Slip Op. 06816
• Parties: Frances BLACK, respondent,v.COUNTY OF DUTCHESS, et al., appellants.
• Court: New York Supreme Court — Appellate Division

87 A.D.3d 1097
930 N.Y.S.2d 64
2011 N.Y. Slip Op. 06816

Frances BLACK, respondent,
v.
COUNTY OF DUTCHESS, et al., appellants.

Supreme Court, Appellate Division, Second Department, New York.

Sept. 27, 2011.

[930 N.Y.S.2d 65]

McCabe & Mack, LLP, Poughkeepsie, N.Y. (Kimberly Hunt Lee of counsel), for appellants.Spiegel, Brown, Fichera & Cote, LLP, Poughkeepsie, N.Y. (Timothy W. Kramer and Donald D. Brown, Jr., of counsel), for respondent.MARK C. DILLON, J.P., DANIEL D. ANGIOLILLO, THOMAS A. DICKERSON, and JEFFREY A. COHEN, JJ.

[87 A.D.3d 1097] In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Dutchess County (Brands, J.), dated June 4, 2010, as denied those branches of their motion which [87 A.D.3d 1098] were for summary judgment dismissing the complaint on the grounds that they were not at fault in the happening of the accident and that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed insofar as appealed from, with costs.

While we affirm the order appealed from, we do so on grounds other than those relied upon by the Supreme Court.

On February 23, 2006, the plaintiff was a seated passenger on a bus owned by the defendant County of Dutchess and operated by the defendant Christopher J. Lorefice, when Lorefice applied the brakes, allegedly to avoid a collision with another vehicle while in a parking lot. As a result of Lorefice applying the brakes and stopping the bus, the plaintiff allegedly sustained injuries. The plaintiff thereafter commenced this action to recover damages for personal injuries.

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 lurch that was “unusual and violent” ( Urquhart v. New York City Tr. Auth., 85 N.Y.2d 828, 830, 623 N.Y.S.2d 838, 647 N.E.2d 1346; Trudell v. New York R.T. Corp., 281 N.Y. 82, 85, 22 N.E.2d 244; Rayford v. County of Westchester, 59 A.D.3d 508, 873 N.Y.S.2d 187; Golub v. New York City Tr. Auth., 40 A.D.3d 581, 836 N.Y.S.2d 197; Aguila v. New York City Tr. Auth., 2 A.D.3d 761, 769 N.Y.S.2d 733). However, the plaintiff's proof “must consist of more than a mere characterization

[930 N.Y.S.2d 66]

of the stop in those terms by the plaintiff” ( Urquhart v. New York City Tr. Auth., 85 N.Y.2d at 830, 623 N.Y.S.2d 838, 647 N.E.2d 1346).

Here, in support of...