| Burke v MTA Bus Co. |
| 2012 NY Slip Op 03396 [95 AD3d 813] |
| May 1, 2012 |
| Appellate Division, Second Department |
| Lurla L. Burke, Respondent, v MTA Bus Company,Appellant, et al., Defendant. |
—[*1] Mallilo & Grossman, Flushing, N.Y. (Francesco Pomara, Jr., and John S. Manessis ofcounsel), for respondent.
In an action to recover damages for personal injuries, the defendant MTA Bus Companyappeals from an order of the Supreme Court, Queens County (Markey, J.), dated May 10, 2011,which denied its motion for summary judgment dismissing the complaint insofar as assertedagainst it.
Ordered that the order is reversed, on the law, with costs, and the motion of the defendantMTA Bus Company for summary judgment dismissing the complaint insofar as asserted againstit is granted.
"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. Proof that the stop was unusual or violent mustconsist of more than a mere characterization of the stop in those terms by the plaintiff"(Urquhart v New York City Tr. Auth., 85 NY2d 828, 829-830 [1995] [citation andinternal quotation marks omitted]; seeBlack v County of Dutchess, 87 AD3d 1097, 1098 [2011]). The evidence must establishthat the force of the stop was "of a different class than the jerks and jolts commonly experiencedin city bus travel and, therefore, attributable to the negligence of [the] defendant" (Urquhart vNew York City Tr. Auth., 85 NY2d at 830; see Guadalupe v New York City Tr. Auth., 91 AD3d 716, 717[2012]). Here, the defendant MTA Bus Company (hereinafter the defendant) submitted theplaintiff's deposition testimony in support of its motion for summary judgment. That testimonywas sufficient to establish, prima facie, that the stop was not "unusual or violent" and of a"different class than the jerks and jolts commonly experienced in city bus travel" (Urquhart vNew York City Tr. Auth., 85 NY2d at 830; see Guadalupe v New York City Tr.Auth., 91 AD3d at 717; Rayford vCounty of Westchester, 59 AD3d 508, 509 [2009]; Golub v New York City Tr. Auth., 40 AD3d 581, 582 [2007]). Inopposition, the plaintiff failed to raise a triable issue of fact (see Guadalupe v New York CityTr. Auth., 91 AD3d at 717). Accordingly, the Supreme Court should have granted thedefendant's motion for summary judgment dismissing the complaint insofar as asserted against it(id.).[*2]
The parties' remaining contentions have been renderedacademic in light of our determination. Dillon, J.P., Balkin, Eng and Chambers, JJ., concur.