| Kievman v Philip |
| 2011 NY Slip Op 04210 [84 AD3d 1031] |
| May 17, 2011 |
| Appellate Division, Second Department |
| Matel Kievman et al., Appellants, v Marie B. Philip,Defendant, and Varsity Bus Co., Inc., et al., Respondents. |
—[*1] Silverman Sclar Shin & Byrne PLLC, New York, N.Y. (Mikhail Ratner, Vincent Chirico,and Jill E. Sodafsky of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof the Supreme Court, Kings County (Bunyan, J.), dated May 19, 2010, which granted the motionof the defendants Varsity Bus Co., Inc., and Logistics Associates, Inc., for summary judgmentdismissing the complaint insofar as asserted against them and, in effect, searched the record andawarded summary judgment to the defendant "Bus Driver Doe."
Ordered that the order is reversed, on the law, with costs, and the motion of the defendantsVarsity Bus Co., Inc., and Logistics Associates, Inc., for summary judgment dismissing thecomplaint insofar as asserted against them is denied.
On the morning of January 14, 2008, the plaintiff Rivka Kievman (hereinafter the mother)was taking her four children, as well as two other children, to school. They had all walked out oftheir building, made a left turn, and were intending to cross East 19th Street, in Brooklyn, aone-way street, because the mother's car was parked on the other side. One child was holding themother's right hand and another child was holding her left hand. The infant plaintiff, MatelKievman (hereinafter the infant plaintiff), a second grader, was positioned to the left of the childholding the mother's left hand, and another child was standing to the left of the infant plaintiff. Aschool bus, owned by the defendant Logistics Associates, Inc., and registered to the defendantVarsity Bus Co., Inc. (hereinafter together the defendants), was double-parked on East 19thStreet in front of their building. The mother walked in front of the bus, which had its enginerunning, in order to check for oncoming traffic. The bus driver looked up, and allegedly wavedthe mother across. She then stepped forward to check for oncoming vehicles and observed anapproaching sport utility vehicle. Upon seeing the approaching vehicle, the mother stepped backwith the children whose hands she was holding, but the infant plaintiff continued walkingforward and was struck by the sport utility vehicle operated by the defendant Marie B. Philip.The infant plaintiff allegedly sustained serious injuries to her right leg. The Supreme Courtgranted the defendants' motion for summary judgment dismissing the complaint insofar awardedas asserted against them. The Supreme Court also, in effect, searched the record and awardedsummary judgment to the nonmoving defendant "Bus Driver Doe" (see [*2]CPLR 3212 [b]). We reverse.
"To establish a prima facie case of negligence, a plaintiff must demonstrate the existence of aduty owed by the defendant to the plaintiff, a breach of that duty, and that the breach was aproximate cause of the plaintiff's injury" (Demshick v Community Hous. Mgt. Corp., 34 AD3d 518, 519[2006]). "[A] duty may arise from negligent words or acts that induce reliance" (Heard v Cityof New York, 82 NY2d 66, 71 [1993]). " '[O]ne who assumes a duty to act, even thoughgratuitously, may thereby become subject to the duty of acting carefully' " (Mirza v Metropolitan Life Ins. Co., 2AD3d 808, 809 [2003], quoting Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 522[1980]). "[T]he question is whether defendant's conduct placed plaintiff in a more vulnerableposition than plaintiff would have been in had defendant done nothing" (Heard v City of NewYork, 82 NY2d at 72; see Gauthier v Super Hair, 306 AD2d 850, 851 [2003]). Adriver of a motor vehicle may, under certain circumstances, be liable to a pedestrian where thedriver "undertakes to direct a pedestrian safely across the road in front of his vehicle, andnegligently carries out that duty" (Valdez v Bernard, 123 AD2d 351, 351 [1986]).
Here, the defendants, by submitting the mother's deposition testimony, demonstrated primafacie that the mother did not rely upon the bus driver's alleged wave, thereby severing the causalnexus between the alleged negligence of the bus driver and the accident (id.; cf.Barber v Merchant, 180 AD2d 984, 986-987 [1992]). In opposition, however, the plaintiffsraised triable issues of fact as to whether they relied to any degree upon the bus driver's wave(see Shapiro v Mangio, 259 AD2d 692, 692-693 [1999]) and, if so, whether the busdriver exercised reasonable care under the circumstances (see Thrane v Haney, 264AD2d 926, 927 [1999]) and whether his alleged wave placed the infant plaintiff in a morevulnerable position than she would have been had the bus driver done nothing (see Heard vCity of New York, 82 NY2d at 72).
Contrary to the defendants' contention, the mother's affidavit submitted in opposition to thedefendants' motion was not inconsistent with her deposition testimony regarding the actions ofthe bus driver in the moments preceding the accident and, therefore, did not constitute an attemptto create a feigned issue of fact (seeCarter v Grenadier Realty, 83 AD3d 640 [2011]; Gleason v City of New York, 68 AD3d 1054, 1056 [2009]; Barco v Green Bus Lines, Inc., 62AD3d 923, 924 [2009]; Enamoradov KHR Holding Co., LLC, 24 AD3d 411, 412-413 [2005]).
Accordingly, the Supreme Court erred in granting the defendants' motion for summaryjudgment dismissing the complaint insofar as asserted against them and, in effect, searching therecord and awarding summary judgment to the nonmoving defendant "Bus Driver Doe." Dillon,J.P., Balkin, Leventhal and Hall, JJ., concur.