FEBRES v. “John Doe’ etc., Defendant. (2023)

Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered on or about September 8, 2021, which denied defendants’ motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted.  The Clerk is directed to enter judgment accordingly.

In this action for personal injuries arising from a fall on a public bus, defendants established prima facie entitlement to judgment as a matter of law by demonstrating that their bus driver was presented with an emergency situation that was not of his own making when a vehicle abruptly swerved into his lane without signaling, and that he took reasonable action by braking to avoid a collision (see Rivera v. New York City Tr. Auth., 77 N.Y.2d 322, 327, 567 N.Y.S.2d 629, 569 N.E.2d 432 [1991];  Castillo v. New York City Tr. Auth., 188 A.D.3d 484, 484–485, 133 N.Y.S.3d 576 [1st Dept. 2020];  Santana–Lizardo v. New York City Tr. Auth., 186 A.D.3d 1176, 1176, 132 N.Y.S.3d 10 [1st Dept. 2020]).

In opposition, plaintiff failed to submit any evidence tending to show that the bus driver created the emergency or could have avoided a collision by taking a different action other than applying the brakes (see Santana v. Metropolitan Transp. Co., 170 A.D.3d 551, 551–552, 97 N.Y.S.3d 66 [1st Dept. 2019]).  Plaintiff's claim that an issue of fact is raised by conflicting testimony over whether the driver braked abruptly or gradually is unavailing.  The undisputed evidence demonstrates that the driver was required to take immediate action to avoid striking the vehicle and that braking with sufficient force to prevent an accident was a reasonable response to the emergency (see Jones v. New York City Tr. Auth., 162 A.D.3d 476, 477, 78 N.Y.S.3d 347 [1st Dept. 2018]).