CLAYSON v. The City of New York, Defendant. (2022)

Order, Supreme Court, New York County (Suzanne J. Adams, J.), entered October 30, 2020, which denied defendants-appellants' motion for summary judgment dismissing the complaint as against them, unanimously reversed, on the law, without costs, and the motion granted.  The Clerk is directed to enter judgment accordingly.

Defendants demonstrated prima facie, based on plaintiff's testimony and the video surveillance tape of the accident, that plaintiff's conduct was the sole proximate cause of the accident (see Splain v. New York City Tr. Auth., 180 A.D.2d 454, 454, 579 N.Y.S.2d 380 [1st Dept. 1992], lv denied 80 N.Y.2d 759, 589 N.Y.S.2d 309, 602 N.E.2d 1125 [1992]).  Plaintiff failed to raise a triable issue of fact concerning the bus driver's negligence (see Rivera v. City of New York 11 N.Y.2d 856, 857, 227 N.Y.S.2d 676, 182 N.E.2d 284 [1962]).  The video evidence shows the bus stopped along the curb at a bus stop while a passenger was entering through its front door.  Simultaneously, in the few seconds prior to the accident, plaintiff was walking in the middle of the sidewalk, veering toward the right—away from the bus—and made no effort to alert the driver that she wanted to board the bus.  After the passenger boarded and the bus began to move, plaintiff changed direction and moved toward the bus.  By this time the bus was already pulling into traffic, and the accident then occurred “almost instantly” (Splain, 180 A.D.2d at 454, 579 N.Y.S.2d 380;  see Cropper v. Stewart, 117 A.D.3d 417, 418, 984 N.Y.S.2d 374 [1st Dept. 2014], lv denied 24 N.Y.3d 914, 2015 WL 233925 [2015];  Williams v. New York City Tr. Auth., 108 A.D.3d 403, 404, 969 N.Y.S.2d 30 [1st Dept. 2013]).

Although plaintiff's expert opined that alleged misalignment of the mirrors was a proximate cause of the accident, the video demonstrated that the mirrors were not a factor because plaintiff approached the bus from the side only after it was moving away from the curb and merging into traffic (see Santoni v. Bertelsmann Prop., Inc., 21 A.D.3d 712, 714–715, 800 N.Y.S.2d 676 [1st Dept. 2005] [opinion evidence cannot be speculative and must be based on facts in the record], citing Samuel v. Aroneau, 270 A.D.2d 474, 475, 704 N.Y.S.2d 652 [2d Dept. 2000], lv denied 95 N.Y.2d 761, 714 N.Y.S.2d 711, 737 N.E.2d 953 [2000]).

Finally, plaintiff did not controvert the testimony by the internal investigators that their reports were based upon a misunderstanding regarding plaintiff's actions, and were prepared without the benefit of the video (see Grullon v. City of New York, 297 A.D.2d 261, 263–264, 747 N.Y.S.2d 426 [1st Dept. 2002];  see also Williams, 108 A.D.3d at 404, 969 N.Y.S.2d 30 [admission of evidence “that holds a defendant to a higher standard of care than required by common law is clearly erroneous”]).

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