Urquhart v. New York City Transit Authority

198 A.D.2d 496, 604 N.Y.S.2d 176, 1993 N.Y. App. Div. LEXIS 11131

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 29, 1993
• Status: Published

Opinions

—In a negligence action to recover damages for personal injuries, the defendant appeals from a judgment of the Supreme Court, Kings County (Garry, J.), entered June 12, 1992, which, upon a jury verdict finding it 90% at fault and the plaintiff 10% at fault in the happening of the accident, and finding that the plaintiff had suffered damages in the amount of $384,000 ($375,000 for pain and suffering and $9,000 for past out-of-pocket expenses), is in favor of the plaintiff and against it in the principal sum of $345,600.

Ordered that the judgment is reversed, on the law, without costs or disbursements, and the complaint is dismissed.

The Supreme Court denied the defendant’s motion to dismiss the complaint on the ground that the plaintiff did not establish a prima facie case. This was error.

"Proof that a conveyance came to a sudden stop without showing that it was unusually violent or that there was more than the usual and ordinary jerk incident thereto is not sufficient to establish negligence in an action by a passenger for injuries sustained” (17 NY Jur 2d, Carriers, § 471, at 543-544; see also, Kokofsky v City of New York, 297 NY 553). Here, we find that the plaintiff failed to establish that the stop was in fact sudden or unusual for a mid-morning bus on Court Street, a street which the plaintiff admitted was filled with pedestrians as well as moving and double-parked automobiles. Therefore, in the absence of other evidence establishing negligence on the part of the operator of the bus, the Supreme Court should have granted the motion to dismiss. Mangano, P. J., Balletta and Rosenblatt, JJ., concur.