| Ryan v New York City Tr. Auth. |
| 2011 NY Slip Op 08578 [89 AD3d 1005] |
| November 22, 2011 |
| Appellate Division, Second Department |
| Jennifer Ryan et al., Respondents, v New York City TransitAuthority, Appellant. |
—[*1] Goldberg & Carlton, PLLC, New York, N.Y. (Gary M. Carlton of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the defendant appeals from aninterlocutory judgment of the Supreme Court, Kings County (Bayne, J.), dated December 22, 2010,which, upon the denial of its motion pursuant to CPLR 4401 for judgment as a matter of law on theissue of liability, made at the close of evidence, and upon a jury verdict on the issue of liability finding it100% at fault in the happening of the accident, is in favor of the plaintiffs and against it, adjudging it100% at fault in the happening of the accident.
Ordered that the interlocutory judgment is reversed, on the law, with costs, the defendant's motionpursuant to CPLR 4401 for judgment as a matter of law on the issue of liability is granted, and thematter is remitted to the Supreme Court, Kings County, for entry of a judgment dismissing thecomplaint.
The injured plaintiff, Jennifer Ryan (hereinafter Ryan), alleges that she sustained injuries when a busowned by the defendant, the New York City Transit Authority, and driven by nonparty Richard Essner,ran over her legs. At the trial of this action, Essner testified that he began to drive the bus forward nearthe intersection of Fourth Avenue and 86th Street in Brooklyn to occupy a space that had just beenvacated by another bus. The bus, which had not yet taken on any passengers, was parallel to the curband less than a foot from it. Ryan ran across the sidewalk toward the side of Essner's moving bus andslapped it several times, beginning about midway between the front and back of the 40-foot-long bus.She then slipped from the sidewalk to the street. Essner had not seen Ryan approach the bus, and heheard only one slap. When he heard the slap, he stopped the bus, but, by the time the bus stopped, itsright rear wheels had run over Ryan's legs. The defendant's bus dispatcher and a nonparty witness, bothof whom saw the incident, testified that the incident occurred very quickly and that Ryan fell to thestreet immediately after she started to bang on the bus. According to the eyewitnesses, Ryan hadappeared to be disoriented only moments before she ran toward the bus. Ryan herself had norecollection of how the incident had occurred. She testified that she was on her way to a subwayentrance near the bus stop and did not intend to ride the bus that day. The last thing she rememberedwas walking on the sidewalk. Ryan, and her husband, suing derivatively, commenced this action torecover damages for personal injuries, alleging that Essner was negligent in his operation of the bus.After a jury trial, the defendant moved pursuant to CPLR [*2]4401 forjudgment as a matter of law on the issue of liability, and the court denied the motion. The jury returneda verdict finding that the defendant was negligent and that Ryan was not. An interlocutory judgment wasentered, the defendant appeals, and we reverse.
To succeed on a motion for judgment as a matter of law pursuant to CPLR 4401, a defendant "hasthe burden of showing that there is no rational process by which the jury could find in favor of theplaintiff and against the moving defendant" (Velez v Goldenberg, 29 AD3d 780, 781 [2006]). In determiningwhether the defendant has met this standard, a court must accept the plaintiffs' evidence as true andaccord the plaintiffs the benefit of every favorable inference which can reasonably be drawn from theevidence presented at trial (id. at 781; see Wong v Tang, 2 AD3d 840 [2003]).
Evaluating the evidence under that standard, we find that there was no rational process by whichthe jury could find in favor of the plaintiffs and against the defendant. There was no evidence that Essnerwas driving at an excessive speed, and the incident unfolded so quickly that Essner could not beconsidered negligent in bringing the bus to a halt in the manner and time it took him to do so. Underthese circumstances, the defendant was entitled to judgment as a matter of law on the issue of liability(see Splain v New York City Tr. Auth., 180 AD2d 454 [1992]; Trillo v Gerry, 135AD2d 625 [1987]).
In light of our determination, we need not review the defendant's remaining contentions. Dillon,J.P., Balkin, Leventhal and Belen, JJ., concur.