Gross v. New York City Transit Authority

• Decision Date: 15 December 1998
• Citation: 681 N.Y.S.2d 513
• Parties: 1998 N.Y. Slip Op. 11,082 Alice GROSS, Plaintiff-Appellant, v. NEW YORK CITY TRANSIT AUTHORITY, et al., Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 513

681 N.Y.S.2d 513

1998 N.Y. Slip Op. 11,082

Alice GROSS, Plaintiff-Appellant, v. NEW YORK CITY TRANSIT AUTHORITY, et al., Defendants-Respondents.

Supreme Court, Appellate Division First Department.

Dec. 15, 1998.

Joanne M. Matthews, for Plaintiff-Appellant.

Anita Isola, for Defendants-Respondents.

Before LERNER, P.J., and MILONAS, ELLERIN, RUBIN and WILLIAMS, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Robert Lippmann J.), entered February 6, 1998, which granted the motion of defendants New York City Transit Authority ("NYCTA") and Manhattan and Bronx Surface Transit Operating Authority ("MABSTOA") (collectively "the transit defendants") for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the complaint reinstated.

This action arises out of injuries suffered by plaintiff on the afternoon of May 21, 1995, as a result of having been struck by a bicycle operated by defendant Brian Ford as she stepped into the street at Seventh Avenue, between 43rd and 44th Streets, to board a bus.

Plaintiff brought this action against, inter alia, the transit defendants, alleging that her injuries were the result of the negligence of the driver of the bus, in that the bus was improperly stopped a full traffic lane away from the curb, thereby requiring her to cross this area in order to board.

The transit defendants moved for summary judgment, asserting that there was no material question of fact that the transit defendants were not negligent in operating the bus or, even if they were, that their actions were not a proximate cause of plaintiff's injuries.

The evidence presented on the motion showed that plaintiff had been briefly waiting for the bus when it arrived and came to a stop one car lane away from the curb. There were no parked cars in the lane between the curb and the bus. Plaintiff did not see the cyclist, who gave no warning, and the bicycle struck her in the back and in the left arm, while both of her feet were on the ground and before she started to step onto the bus. She fell flat on the ground facing the bus, which did not remain at the scene.

Supreme Court, finding that the transit defendants were in no way responsible for the accident, granted their motion for summary judgment. We reverse.

To establish a prima facie case against the transit defendants, plaintiff must establish (1) the existence of a duty on their part to plaintiff; (2) a breach of that duty; and (3) that such breach was a substantial cause of the resulting injury (see, Merino v. New York City Transit Authority, 218 A.D.2d 451, 457, 639 N.Y.S.2d 784, affd. 89 N.Y.2d 824, 653 N.Y.S.2d 270, 675 N.E.2d 1222).

The duty owed by the transit defendants to plaintiff, a boarding passenger, has been described as

a reasonably safe, direct entrance onto the vehicle, clear of any dangerous obstruction or defect which would impede that entrance. Stated differently, imposing liability requires a finding that the placement of the bus dictates that the passenger, in order to board the bus, must negotiate a dangerous or defective path.

(Blye v. Manhattan and Bronx Surface Transit Operating Authority, 124 A.D.2d 106, 111-112, 511 N.Y.S.2d 612, affd. 72 N.Y.2d 888, 532 N.Y.S.2d 752, 528 N.E.2d 1225.)

Generally, the question of whether defendants breached this duty is a question of fact (see, Gordon v. Muchnick, 180 A.D.2d 715, 579 N.Y.S.2d 745). This case presents no exception to that general rule. It is for a jury to decide whether requiring prospective passengers to navigate a full traffic lane, in the busy Times Square area, in order to board the bus presented a foreseeable risk of injury (see, Ausderan v. City of New York, 219 A.D.2d 562, 631 N.Y.S.2d 512; Hickey v. Manhattan & Bronx Surface Transit Operating Authority, 163 A.D.2d 262, 558 N.Y.S.2d 543). We reject the argument of the transit defendants that the evidence demonstrates as a matter of law that the bus driver acted reasonably to provide plaintiff with a "clear, direct and safe path" that plaintiff failed to take advantage of by not waiting until the cyclist had passed before stepping off the curb (cf., Francias v. City of New York, 222 A.D.2d 215, 634 N.Y.S.2d 483). Whether the path afforded to plaintiff under the circumstances presented in this matter was reasonably safe is a question for the jury and is certainly not resolved by the record before us (see, Kimbrough v. City of N.Y., 207 A.D.2d 747, 616 N.Y.S.2d 960; cf., Engram v. Manhattan and Bronx Surface Transit Operating Authority, 190 A.D.2d 536, 593 N.Y.S.2d 213).

In addition, it appears that, by stopping the bus one lane away from the curb, the bus driver violated Department of Transportation Traffic Rules § 4-10(c)(1) (34 RCNY 4-10[c](1)) ¹. Moreover, there is a question of fact as to whether the side of the bus on which the door was open was "available to moving traffic" within the meaning of Vehicle and Traffic Law §...