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

Maribel CUADRADO, Plaintiff-Appellant, v. NEW YORK CITY TRANSIT AUTHORITY, et al., Defendants-Respondents.

Decided: August 11, 2009

GONZALEZ, P.J., TOM, FRIEDMAN, SWEENY, McGUIRE, JJ. Pollack, Pollack, Isaac & DeCicco, New York (Jillian Rosen of counsel), for appellant. Jeffrey Samel & Partners, New York (David Samel of counsel), for respondents.

Order, Supreme Court, New York County (Nicholas Figueroa, J.), entered January 22, 2008, which granted defendants' motion to set aside a jury verdict rendered in favor of plaintiffs, reversed, on the law, without costs, the motion denied, and the verdict reinstated.

 Through her own testimony and that of a disinterested witness, plaintiff produced sufficient objective evidence to establish that the bus from which she fell made a movement that was “unusual and violent,” that is, something more than the jolting and jerking incidental to the operation of a city bus (see Urquhart v. New York City Tr. Auth., 85 N.Y.2d 828, 829-830, 623 N.Y.S.2d 838, 647 N.E.2d 1346 [1995] ).   Moreover, upon our independent review, we do not find that the verdict was against the weight of the evidence.

 In addition, the trial court properly declined to give the jury an instruction on comparative negligence because the evidence did not support it.   Although comparative negligence is usually a jury question, it is “inappropriate where there are no specific factual allegations to support it and no valid line of reasoning which could lead the jury to find plaintiff comparatively negligent” (Perales v. City of New York, 274 A.D.2d 349, 350, 711 N.Y.S.2d 9 [2000] [internal citation omitted];  see also Rountree v. Manhattan & Bronx Surface Tr. Operating Auth., 261 A.D.2d 324, 327, 692 N.Y.S.2d 13 [1999], lv. denied 94 N.Y.2d 754, 701 N.Y.S.2d 340, 723 N.E.2d 89 [1999] ).   To have been entitled to the charge, defendants were required to come forward with evidence that plaintiff's stepping into the exit and/or pushing on the partially opened rear doors was negligent.   As there was no trial evidence that these actions were unreasonable, there was no basis for defendants' requested charge.

I agree with the majority's conclusion that the order granting defendants' motion to set aside the verdict should be reversed, the motion denied and the verdict reinstated, but I disagree with its analysis.

It is by no means clear that the holding of Urquhart v. New York City Tr. Auth., 85 N.Y.2d 828, 623 N.Y.S.2d 838, 647 N.E.2d 1346 [1995] applies when a bus is stopped and the doors are open.   Under Urquhart, the plaintiff must provide “objective evidence of the force of the stop sufficient to establish an inference that the stop was extraordinary and violent, of a different class than the jerks and jolts commonly experienced in city bus travel” (id. at 830, 623 N.Y.S.2d 838, 647 N.E.2d 1346).   Moreover, “[p]roof that the stop was unusual or violent must consist of more than a mere characterization of the stop in those terms by the plaintiff” (id.).   In this case, however, there was evidence from which the jury could have found that the movement of the bus causing plaintiff to fall occurred after the doors had opened.   At the very least, the jury could have found that the movement occurred as the doors were opening.   Why require passengers to guard themselves against even ordinary jerks and lurches attendant to moving buses when the bus is stopped and the doors are either open or opening to let passengers out?

In any event, neither side objected to or made requests to charge with respect to the relevant portions of the court's instructions to the jury (see CPLR 4110-b).   The court did not charge that plaintiff was required to come forward with “objective evidence” of any kind.   Rather, the court charged that “in the absence of an emergency, the carrier must avoid sudden, unusual and violent stops, jerks or lurches,” and that if the jury found that after the door was opened “the movement of the bus was unnecessarily sudden, unusual, and violent, then you will find that the carrier was negligent.”   Although NYCTA moved to dismiss the complaint at the close of plaintiff's case on the ground that plaintiff's evidence was legally insufficient because her evidence established only that the bus “jerked,” which was insufficient to impose liability on NYCTA, it did not object to or make requests to charge regarding the relevant portion of the court's instructions to the jury (see Peguero v. 601 Realty Corp., 58 A.D.3d 556, 873 N.Y.S.2d 17 [2009] ).   Thus, “the law as stated in th[e] charge became the law applicable to the determination of the rights of the parties in this litigation and thus established the legal standard by which the sufficiency of the evidence to support the verdict must be judged” (Harris v. Armstrong, 64 N.Y.2d 700, 702, 485 N.Y.S.2d 523, 474 N.E.2d 1191 [1984] [internal citation omitted] ).

As the jury could have found that NYCTA was liable solely on the basis of a finding that an “unnecessarily sudden” movement of the bus occurred while the door was opening or open, I have no trouble concluding that the verdict should be upheld.   For this reason, we need not and should not reach either the issue of whether the holding of Urquhart applies or the issue of whether plaintiff produced sufficient “objective evidence” establishing an “unusual and violent” movement of the bus.

I agree with the majority's conclusion that the evidence did not support an instruction on comparative negligence.

All concur except McGUIRE, J. who concurs in a separate memorandum as follows: