Van Eyken v. Happy Tours, Inc.

110 A.D.3d 1058, 974 N.Y.S.2d 259

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 30, 2013
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Suffolk County (Farneti, J.), dated June 25, 2012, which denied their motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The Supreme Court properly denied the defendants’ motion for summary judgment. The evidence submitted in support of the defendants’ motion failed to eliminate a triable issue of fact as to whether the stop by the subject bus caused a jerk or lurch that was unusual and violent (see Urquhart v New York City Tr. Auth., 85 NY2d 828 [1995]; Black v County of Dutchess, 87 AD3d 1097 [2011]).

Since the defendants did not meet their prima facie burden, it is unnecessary to determine whether the papers submitted by the plaintiff in opposition were sufficient to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Dillon, J.P., Dickerson, Hall and Austin, JJ., concur.