Blake v. First Transit Transp. Serv.

• Decision Date: 05 March 2015
• Docket Number: 516565
• Citation: 2015 N.Y. Slip Op. 01838,6 N.Y.S.3d 678,126 A.D.3d 1054
• Parties: Arthur BLAKE, Appellant, v. FIRST TRANSIT TRANSPORTATION SERVICE, Respondent.
• Court: New York Supreme Court — Appellate Division

126 A.D.3d 1054
6 N.Y.S.3d 678
2015 N.Y. Slip Op. 01838

Arthur BLAKE, Appellant
v.
FIRST TRANSIT TRANSPORTATION SERVICE, Respondent.

516565

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

March 5, 2015.

6 N.Y.S.3d 679

Arthur Blake, New York City, appellant pro se.

Maynard, O'Connor, Smith & Catalinotto, LLP, Albany (Aaron F. Carbone of counsel), for respondent.

Before: GARRY, J.P., EGAN JR., LYNCH and CLARK, JJ.

Opinion

LYNCH, J.

126 A.D.3d 1054

Appeal from an order of the Supreme Court (McNamara, J.), entered January 29, 2013 in Albany County, which granted defendant's motion for summary judgment dismissing the complaint.

In July 2010, plaintiff, an inmate, was injured while riding a bus between state correctional facilities. Respondent was the entity that provided transportation services pursuant to a contract with the Department of Corrections and Community Supervision (hereinafter DOCCS). In March 2012, plaintiff commenced this negligence action against defendant. Supreme Court granted defendant's motion for summary judgment dismissing the complaint on the ground that defendant did not breach any duty of care owed to plaintiff and plaintiff appeals.

Plaintiff alleges that he was injured when he lost his balance and hit his head as he was returning from using the restroom on the bus. Primarily, he claims that his injury was caused by DOCCS's policy that he had to be mechanically restrained and shackled to another inmate during transport and could only move about the bus while the bus was in motion.

Initially, we find that defendant's argument that plaintiff's claims are barred by the doctrine of collateral estoppel, which was neither asserted as an affirmative defense nor argued before Supreme Court, was not preserved for our review (see Albany Eng'g Corp. v. Hudson River/Black Riv. Regulating Dist., 110 A.D.3d 1220, 1222–1223, 973 N.Y.S.2d 391 [2013] ). Turning to the merits, as a common carrier, defendant had a duty to exercise “reasonable care under all of the circumstances of a particular case” (Bethel v. New York City Tr. Auth., 92 N.Y.2d 348, 356, 681 N.Y.S.2d 201, 703 N.E.2d 1214 [1998] ). In order to establish a prima facie case of negligence against a common carrier for injuries sustained by the movement of the bus, the plaintiff must demonstrate that there was 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 [1995] [internal quotation marks

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