SALAS v. ADIRONDACK TRANSIT LINES INC (2019)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Kathy J. King, J.), dated July 31, 2017.  The order granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

In 2014, the plaintiff commenced this action to recover damages for personal injuries based on allegations that on October 20, 2012, she fell while alighting from the defendant's bus upon its arrival at a bus depot.  Following joinder of issue and discovery, the defendant moved for summary judgment dismissing the complaint.  In the order appealed from, the Supreme Court granted the motion.  The plaintiff appeals.

A common carrier, such as the defendant, “owes a duty to an alighting passenger to stop at a place where the passenger may safely disembark” (Miller v. Fernan, 73 N.Y.2d 844, 846, 537 N.Y.S.2d 123, 534 N.E.2d 40;  see Blye v. Manhattan & Bronx Surface Tr. Operating Auth., 124 A.D.2d 106, 109, 511 N.Y.S.2d 612;  affd 72 N.Y.2d 888, 532 N.Y.S.2d 752, 528 N.E.2d 1225;  see also Meyers v. Delancey Car Serv., Inc., 127 A.D.3d 1148, 1150, 8 N.Y.S.3d 377;  Barravecchio v. New York City Tr. Auth., 83 A.D.3d 630, 632, 922 N.Y.S.2d 96).  “Liability rests upon a finding that the placement of the bus dictates that the passenger, in order to ․ exit ․ the bus, must negotiate a dangerous or defective path” (Malawer v. New York City Tr. Auth., 18 A.D.3d 293, 295, 795 N.Y.S.2d 201 [internal quotation marks omitted], affd 6 N.Y.3d 800, 812 N.Y.S.2d 438, 845 N.E.2d 1268).

Here, in support of its motion for summary judgment, the defendant submitted evidence sufficient to establish, prima facie, that it satisfied its duty of care to provide the plaintiff, who was not disabled and who did not request any assistance, with a safe place to alight from the bus (see Meyers v. Delancey Car Serv., Inc., 127 A.D.3d at 1150, 8 N.Y.S.3d 377;  see also Otonoga v. City of New York, 234 A.D.2d 592, 593, 652 N.Y.S.2d 67;  cf. Toolsie v. New York City Tr. Auth., 55 A.D.3d 476, 476–477, 865 N.Y.S.2d 605;  Sutin v. Manhattan & Bronx Tr. Operating Auth., 54 A.D.3d 616, 616, 864 N.Y.S.2d 411).

In opposition to the defendant's prima facie showing, the plaintiff failed to raise a triable issue of fact (see CPLR 3212[b] ).  The affidavits submitted by the plaintiff and her two traveling companions failed to show that the location where the bus was stopped was unsafe for exiting passengers.  The plaintiff also submitted an affidavit from an expert witness who averred that there is a standard operating procedure in the bus transportation industry for the bus driver to stand at the foot of the bus stairs to offer assistance or advise customers to watch their step when boarding and alighting the bus.  The expert claimed that this procedure was “typically” performed on long distance commuter and charter trips.  While evidence of industry practice and standards is admissible to establish a duty of care (see Trimarco v. Klein, 56 N.Y.2d 98, 105–106, 451 N.Y.S.2d 52, 436 N.E.2d 502), an expert's affidavit in opposition to a motion for summary judgment must contain more than mere conclusory assertions (see Romano v. Stanley, 90 N.Y.2d 444, 451–452, 661 N.Y.S.2d 589, 684 N.E.2d 19;  Abrams v. Bute, 138 A.D.3d 179, 195–196, 27 N.Y.S.3d 58).  Here, the plaintiff's expert failed to set forth any foundation to support the conclusion that an industry standard or practice existed (see Phillips v. McClellan St. Assoc., 262 A.D.2d 748, 749–750, 691 N.Y.S.2d 598).  Nor did the expert identify any specific statute or regulation that the defendant violated that proximately caused the plaintiff's injuries.  The expert affidavit, therefore, did not raise a triable issue of fact (see Trimarco v. Klein, 56 N.Y.2d at 103, 106–107, 451 N.Y.S.2d 52, 436 N.E.2d 502;  Barron v. Eastern Athletic, Inc., 150 A.D.3d 654, 656, 53 N.Y.S.3d 689;  Carlino v. Triboro Coach Corp., 22 A.D.3d 624, 625, 803 N.Y.S.2d 105;  Diaz v. New York Downtown Hosp., 287 A.D.2d 357, 358, 731 N.Y.S.2d 694, affd 99 N.Y.2d 542, 754 N.Y.S.2d 195, 784 N.E.2d 68).

Accordingly, we agree with the Supreme Court's determination granting the defendant's motion for summary judgment dismissing the complaint.

SCHEINKMAN, P.J., LEVENTHAL, CONNOLLY and BRATHWAITE NELSON, JJ., concur.