KANUTEH v. NEW YORK CITY TRANSIT AUTHORITY (2024)

Order, Supreme Court, New York County (Denise M. Dominguez, J.), entered August 29, 2023, which granted defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants demonstrated prima facie entitlement to summary judgment by submitting defendant driver's testimony stating that the bus remained in the driving lane next to the bus lane and that the accident occurred when plaintiff's truck moved out of the bus lane where it had been parked and struck the side of defendants’ bus (see Gaffney v. NYCTA, 210 A.D.3d 426, 426, 177 N.Y.S.3d 577 [1st Dept. 2022];  Batista v. Metropolitan Tr. Auth., 210 A.D.3d 487, 488, 178 N.Y.S.3d 45 [1st Dept. 2022], lv dismissed in part, denied in part 41 N.Y.3d 1011, 213 N.Y.S.3d 755, 237 N.E.3d 821 [2024]).  This testimony was confirmed by authenticated video taken from the bus.  Thus, defendants established prima facie the bus driver's lack of fault and established that it was plaintiff who caused the collision by crossing into the bus's lane of traffic (Vehicle and Traffic Law § 1128;  see Ciraldo v. County of Westchester, 147 A.D.3d 813, 813, 47 N.Y.S.3d 95 [2d Dept. 2017]).

In opposition, plaintiff failed to raise a triable issue of fact.  Plaintiff gave contradictory testimony, stating that he did not know how the accident occurred because he lost consciousness but also stating he knew that the truck remained parked and fully within the bus lane.  His testimony, however, is contradicted by the video evidence establishing that the bus never left its lane of travel and that the truck started to leave its parked spot (see Miranda v. Century Waste Servs., LLC, 210 A.D.3d 590, 591, 179 N.Y.S.3d 212 [1st Dept. 2022]).