MANCIA v. METROPOLITAN TRANSIT AUTHORITY LONG ISLAND BUS (2005)

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Nassau County (Davis, J.), entered September 16, 2003, which denied their motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

The defendants established their prima facie entitlement to judgment as a matter of law by providing evidence that the plaintiff darted out from between two parked vehicles outside of a crosswalk, directly into the side of a bus owned by the defendant Metropolitan Transit Authority Long Island Bus and operated by the defendant Errol Byfield, leaving Byfield unable to avoid contact with him (see Johnson v. Lovett, 285 A.D.2d 627, 728 N.Y.S.2d 753;  Miller v. Sisters of Order of St. Dominic, 262 A.D.2d 373, 374, 691 N.Y.S.2d 168).   In opposition, the plaintiff failed to present sufficient evidence to raise a triable issue of fact as to whether Byfield operated the bus in a negligent manner (see Sheppeard v. Murci, 306 A.D.2d 268, 761 N.Y.S.2d 244).

In this regard we note that the Supreme Court erred in applying the Noseworthy doctrine (see Noseworthy v. City of New York, 298 N.Y. 76, 80 N.E.2d 744) since the plaintiff failed to present expert evidence establishing his loss of memory and its causal relationship to the defendants' conduct (see Menekou v. Crean, 222 A.D.2d 418, 634 N.Y.S.2d 532).