| Guadalupe v New York City Tr. Auth. |
| 2012 NY Slip Op 00332 [91 AD3d 716] |
| Jnury 17, 2012 |
| Appellate Division, Second Department |
| Irma Guadalupe, Appellant, v New York City TransitAuthority et al., Respondents. |
—[*1] Wallace D. Gossett, Brooklyn, N.Y. (Michael Rabinowitz of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Velasquez, J.), dated October 4, 2010, which granted thedefendants' motion, inter alia, for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
On June 4, 2008, the plaintiff allegedly was injured when she was a passenger on a busowned by the defendant New York City Transit Authority (hereinafter the NYCTA). The plaintiffwas standing on the bus, as there were no vacant seats. According to the plaintiff, the bus driverapplied the brakes suddenly, and she was propelled forward into a pole.
The plaintiff commenced this action to recover damages for personal injuries against theNYCTA and the defendant Jose A. Martinez, who may have been the bus operator. Thedefendants moved, inter alia, for summary judgment dismissing the complaint. The SupremeCourt, among other things, granted that branch of the defendants' motion which was for summaryjudgment dismissing the complaint based, inter alia, on its determination that the plaintiff'stestimony was not credible.
" 'The function of the court on a motion for summary judgment is not to resolve issues of factor determine matters of credibility, but merely to determine whether such issues exist' " (Stukas v Streiter, 83 AD3d 18, 23[2011], quoting Kolivas v Kirchoff,14 AD3d 493, 493 [2005]). Here, the Supreme Court improperly made credibilitydeterminations in resolving that branch of the defendants' motion which was for summaryjudgment dismissing the complaint. Nonetheless, we affirm the Supreme Court's order ondifferent grounds.
"To establish a prima facie case of negligence against a common carrier for injuries sustainedby a passenger as a result of the movement of the vehicle, the plaintiff must establish that themovement consisted of a jerk or lurch that was unusual or violent" (Rayford v County of Westchester, 59AD3d 508, 508-509 [2009] [internal quotation marks omitted]; see Urquhart v NewYork City Tr. Auth., 85 NY2d 828, 830 [1995]; Trudell v New York R.T. Corp., 281NY 82, 85 [1939]; Black v County ofDutchess, 87 AD3d 1097, 1098 [2011]; Golub v New York City Tr. Auth., 40 AD3d 581, 582 [2007])."[T]he plaintiff's proof 'must consist of more than a mere characterization of the stop in thoseterms by the plaintiff' " (Black v County of Dutchess, 87 AD3d at 1098, quotingUrquhart v New York City Tr. [*2]Auth., 85 NY2d at830). The evidence must establish that the movement of the vehicle was "of a 'different class thanthe jerks and jolts commonly experienced in city bus travel' " (Golub v New York City Tr.Auth., 40 AD3d at 582, quoting Urquhart v New York City Tr. Auth, 85 NY2d at830; see Banfield v New York City Tr.Auth., 36 AD3d 732, 732-733 [2007]).
In support of their motion, the defendants submitted transcripts of the plaintiff's GeneralMunicipal Law § 50-h hearing testimony, as well as her subsequent deposition testimony.The plaintiff's testimony provided the only evidence concerning the manner in which the accidentallegedly occurred. The plaintiff testified that, as she was standing on the moving bus, the driversuddenly applied the brakes, causing her to be propelled forward 6 to 10 feet into a pole.However, the plaintiff also testified that, immediately prior to the incident, the bus was travelingat a "moderate" speed, that, as a result of the accident, she did not fall to the floor but ratherremained standing, and that she did not see anyone else on the bus move as a result of the busstopping. Viewing the evidence in the light most favorable to the plaintiff (see e.g. Pearson v Dix McBride, LLC,63 AD3d 895 [2009]), we find that the defendants, in support of that branch of their motionwhich was for summary judgment dismissing the complaint, established, prima facie, that theincident described was not "unusual and violent," and of a "different class than the jerks and joltscommonly experienced in city bus travel" (Urquhart v New York City Tr. Auth., 85NY2d at 830; see Rayford v County of Westchester, 59 AD3d at 508-509; Golub vNew York City Tr. Auth., 40 AD3d at 582; Banfield v New York City Tr. Auth., 36AD3d at 732-733; compare Black v County of Dutchess, 87 AD3d at 1098-1099;Jenkins v Westchester County, 278 AD2d 370, 370 [2000]). In opposition, the plaintifffailed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324[1986]). Accordingly, that branch of the defendants' motion which was for summary judgmentdismissing the complaint was properly granted.
The plaintiff's remaining contention has been rendered academic in light of ourdetermination. Rivera, J.P., Roman, Sgroi and Cohen, JJ., concur.