GARCIA v. SUNNY TRANSPORTATION SERVICES

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Yazmin GARCIA, respondent, v. SUNNY TRANSPORTATION SERVICES, et al., appellants.

Decided: October 24, 2012

RANDALL T. ENG, P.J., PETER B. SKELOS, PLUMMER E. LOTT, and JEFFREY A. COHEN, JJ. Lewis, Brisbois, Bisgaard & Smith, LLP, New York, N.Y. (Nicholas Hurzeler and Gregory S. Katz of counsel), for appellants. Blank & Star, PLLC, Brooklyn, N.Y. (Helene Blank, Scott Star, and Matthew Sakkas 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 (Jacobson, J.), dated November 2, 2011, which granted the plaintiff's motion for summary judgment on the issue of liability against the defendant Sunny Transportation Services.

ORDERED that the appeal by the defendants M & C Transportation, LLC, and “John Doe” is dismissed, as those defendants are not aggrieved by the order appealed from (see CPLR 5511); and it is further,

ORDERED that the order is reversed on the appeal by the defendant Sunny Transportation Services, on the law, and the plaintiff's motion for summary judgment on the issue of liability against that defendant is denied; and it is further,

ORDERED that one bill of costs is awarded to the defendant Sunny Transportation Services.

“To establish a prima facie case of negligence against a common carrier for injuries sustained by a passenger as a result of the movement of the vehicle, the plaintiff must establish that the movement consisted of a jerk or lurch that was ‘unusual and violent’ “ (Golub v. New York City Tr. Auth., 40 A.D.3d 581, 582, 836 N.Y.S.2d 197, quoting Urquhart v. New York City Tr. Auth., 85 N.Y.2d 828, 830, 623 N.Y.S.2d 838, 647 N.E.2d 1346; see Burke v. MTA Bus Co., 95 A.D.3d 813, 942 N.Y.S.2d 817; Gioulis v. MTA Bus Co., 94 A.D.3d 811, 812, 941 N.Y.S.2d 689; Black v. County of Dutchess, 87 A.D.3d 1097, 1098, 930 N.Y.S.2d 64). Here, in moving for summary judgment on the issue of liability against the defendant Sunny Transportation Services, the plaintiff merely alleged in her affidavit that the defendant driver began to drive away before she was seated, and she failed to establish, prima facie, that the movement of the vehicle was “unusual and violent” (Urquhart v. New York City Tr. Auth., 85 N.Y.2d at 830, 623 N.Y.S.2d 838, 647 N.E.2d 1346; see Guadalupe v. New York City Tr. Auth., 91 A.D.3d 716, 936 N.Y.S.2d 314; McLeod v. County of Westchester, 38 A.D.3d 624, 625, 831 N.Y.S.2d 550; Jenkins v. Westchester County, 278 A.D.2d 370, 717 N.Y.S.2d 372). Since the plaintiff failed to meet her initial burden as the movant, the plaintiff's motion for summary judgment should have been denied, regardless of the sufficiency of the opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642).

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