| Lovato v New York City Tr. Auth. |
| 2008 NY Slip Op 03596 [50 AD3d 969] |
| April 22, 2008 |
| Appellate Division, Second Department |
| Ana Lovato, Respondent, v New York City TransitAuthority, Appellant, et al., Defendant. (And a Third-Party Action.) |
—[*1] Yudin & Yudin (Ronald M. Yudin and Pollack, Pollack, Isaac & De Cicco, New York, N.Y.[Brian J. Isaac] of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant New York City TransitAuthority appeals from a judgment of the Supreme Court, Kings County (Schneier, J.), enteredAugust 11, 2006, which, upon the denial of its motion pursuant to CPLR 4401 to dismiss thecomplaint for failure to establish a prima facie case, made at the close of the plaintiff's case onthe issue of liability, upon a jury verdict on the issue of liability finding it 100% at fault in thehappening of the accident, and upon a jury verdict on the issue of damages finding that theplaintiff sustained damages in the principal sums of $200,000 for past pain and suffering and$800,000 for future pain and suffering, is in favor of the plaintiff and against it.
Ordered that the judgment is reversed, on the law, with costs, the motion pursuant to CPLR4401 to dismiss the complaint for failure to establish a prima facie case is granted, and thecomplaint is dismissed.
The plaintiff commenced this action based upon the allegation that she sprained her anklewhen she stepped off a bus operated by the defendant New York City Transit Authority(hereinafter the defendant). According to the plaintiff, the defendant was negligent because shewas required to disembark from the bus at a location where the surface of the street was raisedand uneven. The case proceeded to trial on the issue of liability, and at the close of the plaintiff'scase on the issue of liability, the defendant moved pursuant to CPLR 4401 to dismiss thecomplaint for [*2]failure to establish a prima facie case. TheSupreme Court denied the motion.
A motion for judgment as a matter of law pursuant to CPLR 4401 may be granted only when,upon the evidence presented, there is no valid line of reasoning and permissible inferences whichcould possibly lead rational persons to the conclusion reached by the jury upon the evidencepresented at trial, and no rational process by which the jury could find in favor of the nonmovingparty (see Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]). "In considering such a motion,the trial court must afford the party opposing the motion every inference which may properly bedrawn from the facts presented, and the facts must be considered in a light most favorable to thenonmovant" (Hand v Field, 15AD3d 542, 543 [2005] [internal quotation marks and citations omitted]). Contrary to theplaintiff's contention, viewing the facts in the light most favorable to her, the evidence adduced attrial was insufficient to establish a prima facie case of negligence against the defendant. Thephotograph submitted by the plaintiff of the area in question does not show a foreseeable hazardfor which liability can be imposed (see Engram v Manhattan & Bronx Surface Tr. OperatingAuth., 190 AD2d 536 [1993]), and even if it did show such a hazard, the bus driver could nothave observed it from his vantage point (see Blye v Manhattan & Bronx Surface Tr.Operating Auth., 124 AD2d 106, 113 [1987], affd 72 NY2d 888 [1988]).Furthermore, the plaintiff failed to establish that the defendant's rules imposed a duty owed to herby the bus driver, as she did not introduce any testimony regarding industry standards andgenerally-accepted practices (see Trainerv City of New York, 41 AD3d 202 [2007]; Carlino v Triboro Coach Corp., 22 AD3d 624 [2005]).
In light of the foregoing, the defendant's remaining contentions have been renderedacademic. Lifson, J.P., Ritter, Angiolillo and Carni, JJ., concur.