| Sabella v City of New York |
| 2009 NY Slip Op 00368 [58 AD3d 712] |
| January 20, 2009 |
| Appellate Division, Second Department |
| Lisa Sabella, Respondent, v City of New York et al.,Defendants, and New York City Transit Authority et al., Appellants. (And Two Third-PartyActions.) |
—[*1]
In an action to recover damages for personal injuries, the defendants New York City TransitAuthority and Luis Gonzalez appeal, as limited by their brief, from so much of an order of theSupreme Court, Richmond County (Maltese, J.), dated October 10, 2007, as denied that branchof their cross motion which was for summary judgment dismissing the complaint insofar asasserted against them.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the appellants' cross motion which was for summary judgment dismissing thecomplaint insofar as asserted against them is granted.
The plaintiff allegedly fractured her ankle while disembarking from a bus operated by thedefendant New York City Transit Authority (hereinafter NYCTA) and driven by the defendantLuis Gonzalez (hereinafter together the appellants). The plaintiff alleged that the appellantsnegligently failed to provide her with a safe place to alight by not engaging the kneeling device,which lowers the steps on the bus. The appellants cross-moved, inter alia, for summary judgmentdismissing the complaint insofar as asserted against them. In the order appealed from, theSupreme Court, among other things, denied that branch of the cross motion on the ground thatthe appellants' submissions indicated that the bus was either three inches or six inches from thecurb and, thus, an issue of fact existed as to whether, in light of NYCTA policy and custom, theappellants were negligent in failing to lower the bus before the plaintiff disembarked. We reversethe order insofar as appealed from.[*2]
In his deposition testimony, Gonzalez stated thatNYCTA policy requires drivers to lower the bus if it is stopped more than six inches from thecurb or if the disembarking passenger appears to be disabled, is a senior citizen, or has a babystroller. Here, the appellants submitted evidence showing that at the time of the subject accident,the bus was stopped no more than six inches from the curb. Moreover, there is no evidence thatthe plaintiff was disabled, a senior citizen, or had a stroller. The appellants also submittedevidence showing that the sidewalk where the bus stopped had no defect. Accordingly, theappellants established, prima facie, that they had no duty to lower the bus before the plaintiffdisembarked (see Lovato v New YorkCity Tr. Auth., 50 AD3d 969 [2008]; Trainer v City of New York, 41 AD3d 202 [2007]; Carlino v Triboro Coach Corp., 22AD3d 624 [2005]) and that they provided the plaintiff with a safe place to disembark(see Miller v Fernan, 73 NY2d 844, 846 [1988]; Tanzer v City of New York, 41 AD3d 582 [2007]; Brown vCity of New York, 250 AD2d 638, 639 [1998]). In opposition, the plaintiff failed to raise atriable issue of fact (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).Accordingly, the Supreme Court should have awarded the appellants summary judgmentdismissing the complaint insofar as asserted against them. Skelos, J.P., Dillon, McCarthy andEng, JJ., concur. [See 2007 NY Slip Op 33261(U).]