| Black v County of Dutchess |
| 2011 NY Slip Op 06816 [87 AD3d 1097] |
| September 27, 2011 |
| Appellate Division, Second Department |
| Frances Black, Respondent, v County of Dutchess et al.,Appellants. |
—[*1] Spiegel, Brown, Fichera & CotÉ, LLP, Poughkeepsie, N.Y. (Timothy W. Kramer andDonald D. Brown, Jr., of counsel), for respondent.
In an action to recover damages for personal injuries, the defendants appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Dutchess County (Brands, J.), datedJune 4, 2010, as denied those branches of their motion which were for summary judgmentdismissing the complaint on the grounds that they were not at fault in the happening of theaccident and that the plaintiff did not sustain a serious injury within the meaning of InsuranceLaw § 5102 (d).
Ordered that the order is affirmed insofar as appealed from, with costs.
While we affirm the order appealed from, we do so on grounds other than those relied uponby the Supreme Court.
On February 23, 2006, the plaintiff was a seated passenger on a bus owned by the defendantCounty of Dutchess and operated by the defendant Christopher J. Lorefice, when Loreficeapplied the brakes, allegedly to avoid a collision with another vehicle while in a parking lot. As aresult of Lorefice applying the brakes and stopping the bus, the plaintiff allegedly sustainedinjuries. The plaintiff thereafter commenced this action to recover damages for personal injuries.
To establish a prima facie case of negligence against a common carrier for injuries sustainedby a passenger when the vehicle comes to a halt, the plaintiff must establish that the stop causeda jerk or lurch that was "unusual and violent" (Urquhart v New York City Tr. Auth., 85NY2d 828, 830 [1995]; Trudell v New York R.T. Corp., 281 NY 82, 85 [1939]; Rayford v County of Westchester, 59AD3d 508 [2009]; Golub v NewYork City Tr. Auth., 40 AD3d 581 [2007]; Aguila v New York City Tr. Auth., 2 AD3d 761 [2003]). However,the plaintiff's proof "must consist of more than a mere characterization of the stop in those termsby the plaintiff" (Urquhart v New York City Tr. Auth., 85 NY2d at 830).
Here, in support of that branch of their motion which was for summary judgment dismissingthe complaint on the ground that they were not at fault in the happening of the subject accident,the defendants failed to establish their prima facie entitlement to judgment as a matter of [*2]law. The defendants relied upon, inter alia, the deposition testimonyof the plaintiff and Lorefice. The plaintiff testified that, prior to the bus stopping, the busappeared to her to be trying to "out beat" a car in the parking lot in which it was traveling. Shefurther asserted that the bus was traveling "pretty fast," although she could not quantify a speed.She further recalled that Lorefice slammed on the brakes, which caused her entire body to comeoff her seat and into the metal partition and pole directly in front of her seat, causing injuries to,inter alia, her right knee. Lorefice admitted at his deposition that he braked "hard" to avoid acollision with a car in the parking lot, and that the car he was trying to avoid had theright-of-way. The evidence submitted in support of the motion raised a triable issue of fact as towhether the stop at issue was unusual and violent, as opposed to whether the stop involved onlythe normal jerks and jolts commonly associated with city bus travel (see Urquhart v NewYork City Tr. Auth., 85 NY2d 828 [1995]).
As to that branch of the defendants' motion which was for summary judgment dismissing thecomplaint on the ground that the plaintiff did not sustain a serious injury within the meaning ofInsurance Law § 5102 (d), the defendants failed to meet their prima facie burden ofshowing that the plaintiff did not sustain a serious injury to her right knee as a result of thesubject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy vEyler, 79 NY2d 955, 956-957 [1992]). The Supreme Court erred in concluding that thedefendants met their prima facie burden on the issue of serious injury. In support of that branchof their motion, the defendants relied upon, inter alia, the affirmed medical report of their ownexpert orthopedic surgeon, as well as the plaintiff's medical reports from her treating orthopedicsurgeon. The defendants' examining orthopedic surgeon (hereinafter the defendants' expert)examined the plaintiff on September 14, 2009, approximately three years and seven months afterthe accident. During that examination, he noted that the plaintiff's right knee range of motion wasfrom 0 to 100 degrees, when 0 to 140 was normal. Thus, the defendants submitted evidence ontheir own motion that the plaintiff was suffering from a significant restriction of motion in herright knee (see Sainnoval v Sallick,78 AD3d 922 [2010]; Cheour vPete & Sals Harborview Transp., Inc., 76 AD3d 989 [2010]; Bagot v Singh, 59 AD3d 368[2009]). The defendants' expert also noted in his report that an MRI scan of the plaintiff's rightknee revealed the existence of a tear in the medial meniscus of the right knee.
The defendants also submitted contradictory proof on this branch of their motion as towhether the plaintiff's right knee condition was caused by the subject accident, a degenerativedisease, or a previous accident (see Dettori v Molzon, 306 AD2d 308 [2003]; Cosciav 938 Trading Corp., 283 AD2d 538 [2001]; Julemis v Gates, 281 AD2d 396[2001]).
Since the defendants did not meet their prima facie burden with respect to either of thebranches of their motion at issue, it is unnecessary to determine whether the papers submitted bythe plaintiff in opposition thereto were sufficient to raise a triable issue of fact (see Alvarez vProspect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr.,64 NY2d 851, 853 [1985]; see also Dettori v Molzon, 306 AD2d at 308; Coscia v 938Trading Corp., 283 AD2d at 538). Dillon, J.P., Angiolillo, Dickerson and Cohen, JJ., concur.