ORTIZ v. GLOBE GROUND NORTH AMERICA

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

Roma ORTIZ, respondent, v. GLOBE GROUND NORTH AMERICA, et al., appellants.

Decided: January 30, 2007

ROBERT W. SCHMIDT, J.P., STEPHEN G. CRANE, PETER B. SKELOS, and STEVEN W. FISHER, JJ. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York, N.Y. (Bianca Michelis, Richard E. Lerner, and Patrick Geraghty of counsel), for appellants. Rose and Koerner, Brooklyn, N.Y. (Ronald Koerner of counsel), for respondent.

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Schneier, J.), dated August 19, 2005, which denied their motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff allegedly was injured when the bus on which she was a passenger came to a sudden stop, causing her to fall to the ground. The defendants moved for summary judgment on the ground that the defendant bus driver, in stopping suddenly, was responding to an emergency situation for which the defendants cannot be held liable (see e.g., Caristo v. Sanzone, 96 N.Y.2d 172, 726 N.Y.S.2d 334, 750 N.E.2d 36).   The Supreme Court denied the motion.   We affirm.

On this record, the defendants failed to establish their prima facie entitlement to judgment as a matter of law (see Ayotte v. Gervasio, 81 N.Y.2d 1062, 601 N.Y.S.2d 463, 619 N.E.2d 400), as the evidence they tendered leaves unresolved material issues of fact regarding the applicability of the emergency doctrine (see Tossas v. Ponce, 24 A.D.3d 224, 804 N.Y.S.2d 919;  McGraw v. Glowacki, 303 A.D.2d 968, 969, 758 N.Y.S.2d 224;  Morgan v. Ski Roundtop, 290 A.D.2d 618, 619-620, 736 N.Y.S.2d 135;  cf. Roviello v. Schoolman Transp. Sys., 10 A.D.3d 356, 780 N.Y.S.2d 295).

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