CLARKE v. John Doe 1, et al., Defendants. (2024)

Order, Supreme Court, New York County (Denise M. Dominguez, J.), entered September 29, 2023, which granted defendant New York City Transit Authority's motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

Defendant established its entitlement to summary judgment as a matter of law by submitting security camera and dashcam footage showing that the New York City Transit Authority bus carrying plaintiff remained in the bus-only lane, where it had the right-of-way, and that a truck abruptly veered in front of the bus (see Steigelman v. Transervice Lease Corp., 145 A.D.3d 439, 439, 42 N.Y.S.3d 146 [1st Dept. 2016]).  In opposition, plaintiff failed to raise an issue of fact as to the bus driver's negligence.  Although plaintiff raises arguments for the first time on appeal, we may consider them as they involve no new facts other than those that already appear on the record (see Vasquez v. Manhattan Coll., 223 A.D.3d 601, 602–603, 204 N.Y.S.3d 47 [1st Dept. 2024]).  Plaintiff acknowledges that the driver had only a couple of seconds to react between the truck's sudden lane change and the collision.  “[P]laintiff's speculation that [the driver] might have avoided the collision had he taken a particular evasive action does not raise a triable issue of fact, especially because [he] had at most a few seconds to react” (Calderon v. Calise, 214 A.D.3d 446, 446–447, 183 N.Y.S.3d 733 [1st Dept. 2023];  see Batista v. Metropolitan Transp. Auth., 210 A.D.3d 487, 488, 178 N.Y.S.3d 45 [1st Dept. 2022]).

We have considered plaintiff's remaining arguments and find them unavailing.