FONSECA v. MANHATTAN AND BRONX SURFACE TRANSIT OPERATING AUTHORITY

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Supreme Court, Appellate Division, First Department, New York.

Jose FONSECA, Plaintiff-Appellant, v. MANHATTAN AND BRONX SURFACE TRANSIT OPERATING AUTHORITY, et al., Defendants-Respondents.

Decided: January 18, 2005

TOM, J.P., SAXE, WILLIAMS, SWEENY, CATTERSON, JJ. Loft & Zarkin, New York (Jeffrey B. Melcer of counsel), for appellant. Steve S. Efron, New York, for respondents.

Order, Supreme Court, New York County (Robert D. Lippmann, J.), entered September 18, 2003, which granted defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion denied and the complaint reinstated.

Plaintiff's testimony at his deposition and at his General Municipal Law § 50-h hearing sufficiently established a prima facie case of negligence against defendants.   The 81-year-old plaintiff testified that he was injured when the bus he had just boarded “stopped hard,” causing him and other passengers to fall.   Plaintiff's injuries included a hip fracture and a fracture of his left femur, resulting in permanent loss of use of the left hip and leg and a lengthy confinement to a wheelchair, cerebral trauma, and damage to his dentures, which were expelled from his mouth.   The injuries allegedly destroyed plaintiff's prior ability to run errands, shop and to otherwise conduct his day-to-day affairs independently.   The bus driver gave a conflicting account of the incident.   While admitting that he heard but did not see plaintiff fall, he stated that he observed plaintiff and his packages strewn on the floor of the bus, and that he immediately went to plaintiff's assistance.

Plaintiff's testimony did not merely characterize the bus's stop as sudden or violent.  “It also provided objective evidence of the force of the stop sufficient to establish an inference that the stop was extraordinary and violent ․ different ․ than the jerks and jolts commonly experienced in city bus travel and, therefore, attributable to the negligence of defendant” (Urquhart v. New York City Tr. Auth., 85 N.Y.2d 828, 830, 623 N.Y.S.2d 838, 647 N.E.2d 1346 [1995] ).   Hence it raised questions of fact that should be determined in the light of surrounding circumstances (Harris v. Manhattan & Bronx Surface Tr. Operating Auth., 138 A.D.2d 56, 58, 529 N.Y.S.2d 290 [1988] ), such as whether defendants were negligent in the operation of the bus and whether such negligence caused plaintiff's injuries.