| Abrams v Excellent Bus Serv., Inc. |
| 2012 NY Slip Op 00311 [91 AD3d 681] |
| Jnury 17, 2012 |
| Appellate Division, Second Department |
| Rachel Abrams, an Infant, by Her Mother and Natural Guardian,Dvora Abrams, et al., Appellants, v Excellent Bus Service, Inc., et al.,Respondents. |
—[*1] Ryan & Conlon, LLP, New York, N.Y. (William F. Ryan of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiffs appeal (1), as limited bytheir brief, from so much of an order of the Supreme Court, Kings County (Bunyan, J.), enteredMarch 26, 2010, as denied their cross motion for a unified trial, and (2) from a judgment of thesame court (Saitta, J.), entered September 22, 2010, which, upon a jury verdict on the issue ofliability, finding that the defendants were not negligent in the operation of a bus, is in favor of thedefendants and against them, in effect, dismissing the complaint.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the defendants.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of judgment in the action (see Matter of Aho, 39NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for reviewand have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).
On February 11, 2007, the plaintiff Rachel Abrams (hereinafter the injured plaintiff), then 15years old, allegedly injured her right knee when she fell while returning to her seat from thebathroom on a moving coach bus. She alleged that the bus swerved, causing her to fall. Theinjured plaintiff, and her mother derivatively, commenced this negligence action against thedefendants, Excellent Bus Service, Inc., the owner of the bus, and the individual who was drivingthe bus at the time of the incident. The defendants moved for summary judgment on the issue ofliability and the plaintiffs cross-moved for a unified trial. In an order entered March 26, 2010, theSupreme Court denied both motions.
Following a trial on the issue of liability, the jury found that the defendants were notnegligent in the operation of the bus. Thereafter, the Supreme Court entered a judgment, ineffect, [*2]dismissing the complaint.
Courts are encouraged to conduct bifurcated trials in personal injury actions (see 22NYCRR 202.42 [a]; Bertelle v NewYork City Tr. Auth., 19 AD3d 343, 344 [2005]). Unified trials should only be held"where the nature of the injuries has an important bearing on the issue of liability" (Berman v County of Suffolk, 26 AD3d307, 308 [2006]). The decision whether to conduct a bifurcated trial rests within thediscretion of the trial court, and should not be disturbed absent an improvident exercise ofdiscretion (see CPLR 603; Wright v New York City Hous. Auth., 273 AD2d 378,378 [2000]; Lind v City of New York, 270 AD2d 315, 316 [2000]; McIver vCanning, 204 AD2d 698, 699 [1994]). Here, the Supreme Court providently exercised itsdiscretion in conducting a bifurcated trial, since the injured plaintiff's injuries did not have abearing on the issue of liability.
Further, the Supreme Court properly denied the plaintiffs' request for a res ipsa loquiturcharge. Such a charge is warranted only where a plaintiff establishes that (1) the type of accidentat issue ordinarily does not occur in the absence of negligence, (2) the instrumentality causing theaccident was in the defendant's exclusive control, and (3) the accident was not due to anyvoluntary action or contribution by the plaintiff (see Dermatossian v New York City Tr.Auth., 67 NY2d 219, 226 [1986]; Di Santo v County of Westchester, 210 AD2d 628,629 [1994]). A fall on a moving bus is not the kind of event that ordinarily does not occur in theabsence of negligence.
The plaintiffs' remaining contentions are without merit. Florio, J.P., Belen, Roman and Sgroi,JJ., concur.