Lowhar–Lewis v. Metro. Transp. Auth.

• Decision Date: 18 July 2012
• Citation: 948 N.Y.S.2d 667,2012 N.Y. Slip Op. 05615,97 A.D.3d 728
• Parties: Elizabeth LOWHAR–LEWIS, respondent, v. METROPOLITAN TRANSPORTATION AUTHORITY, et al., appellants, et al., defendant.
• Court: New York Supreme Court — Appellate Division

97 A.D.3d 728

948 N.Y.S.2d 667

2012 N.Y. Slip Op. 05615

Elizabeth LOWHAR–LEWIS, respondent,

v.METROPOLITAN TRANSPORTATION AUTHORITY, et al., appellants, et al., defendant.

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

July 18, 2012.

Morris Duffy Alonso & Faley, New York, N.Y. (Anna J. Ervolina and Andrea M. Alonso of counsel), for appellants.

Michael D. Hassin, Rockville Centre, N.Y. (Randall A. Sorscher of counsel), for respondent.

PETER B. SKELOS, J.P., RUTH C. BALKIN, PLUMMER E. LOTT, and ROBERT J. MILLER, JJ.

In an action to recover damages for personal injuries, the defendants Metropolitan Transportation Authority and MTA Bus Company appeal from an order of the Supreme Court, Queens County (Strauss, J.), entered September 16, 2011, which denied their motion for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is affirmed, with costs.

The plaintiff commenced this action after she allegedly was injured when the bus on which she was a passenger stopped suddenly, causing her to fall. The bus driver testified at his deposition that he was in heavy traffic “at least a car length” behind a passenger car, when the car stopped suddenly in an intersection, although the light was green. The bus driver, who testified that the bus had been traveling at “probably less than 15” miles per hour, applied the brake and stopped the bus immediately. He was able to avoid colliding with the car, which then made a left turn without having signaled. The defendants Metropolitan Transportation Authority and MTA Bus Company (hereinafter together the defendants) moved for summary judgment dismissing the complaint insofar as asserted against them. The Supreme Court denied the motion, finding the existence of triable issues of fact.

To establish prima facie that a common carrier was negligent in the stop of a bus, a plaintiff must prove that the stop was “ ‘unusual and violent,’ ” rather than merely of the sort of “jerks and jolts commonly experienced in city bus travel” ( Urquhart v. New York City Tr. Auth., 85 N.Y.2d 828, 830, 623 N.Y.S.2d 838, 647 N.E.2d 1346, quoting Trudell v. New York Rapid Transit Corp., 281 N.Y. 82, 85, 22 N.E.2d 244;see Black v. County of Dutchess, 87 A.D.3d 1097, 1098, 930 N.Y.S.2d 64). Moreover, a plaintiff may not satisfy that burden of proof merely by characterizing the stop as unusual and violent ( see Urquhart v. New York City Tr. Auth., 85 N.Y.2d at 829–830, 623 N.Y.S.2d 838, 647 N.E.2d 1346;Burke v. MTA Bus Co., 95 A.D.3d 813, 942 N.Y.S.2d 817;Gioulis v. MTA Bus Co., 94 A.D.3d 811, 812, 941 N.Y.S.2d 689). In seeking summary judgment dismissing the complaint, however, common carriers have the burden of establishing prima facie that the stop was not unusual and violent ( see Burke v. MTA Bus Co., 95 A.D.3d 813, 942 N.Y.S.2d 817;Guadalupe v. New York City Tr. Auth., 91 A.D.3d 716, 717, 936 N.Y.S.2d 314;Black v. County of Dutchess, 87 A.D.3d at 1098–1099, 930 N.Y.S.2d 64). Here, in support of their motion, the defendants submitted, among other things, the bus driver's deposition testimony. According to the bus driver, the bus may have been traveling as fast as 15 miles per hour and as little as one car length behind the car before the car stopped suddenly. He further testified that the bus stopped immediately when he applied the brake. That testimony itself demonstrated the existence of a triable issue of fact as to whether the stop of the bus was unusual and violent ( see Urquhart v. New York City Tr. Auth., 85 N.Y.2d at 830, 623 N.Y.S.2d 838, 647 N.E.2d 1346;Black v. County of Dutchess, 87 A.D.3d at 1098–1099, 930 N.Y.S.2d 64).

The defendants assert that they are nonetheless entitled to summary judgment under the “emergency doctrine” ( Rivera v. New York City Tr. Auth., 77 N.Y.2d 322, 326, 567 N.Y.S.2d 629, 569 N.E.2d 432). By this doctrine, our law recognizes “that those faced with a sudden and unexpected circumstance, not of their own making, that leaves them with little or no time for reflection or reasonably causes them to be so disturbed that they are compelled to make a quick decision without weighing alternative courses of conduct, may not be negligent if their actions are reasonable and prudent in the context of the emergency” ( Bello v. Transit...