Hines v. New York City Transit Authority

Hines v New York City Tr. Auth. (2016 NY Slip Op 03963)

Hines v New York City Tr. Auth.

2016 NY Slip Op 03963

Decided on May 19, 2016

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 19, 2016
Sweeny, J.P., Renwick, Andrias, Kapnick, Kahn, JJ.

1187 159194/12

[*1]Steven Hines, Plaintiff,

v

New York City Transit Authority, et al., Defendants-Respondents, Academy Express LLC, etc., et al., Defendants-Appellants.

Mintzer Sarowitz Zeris Ledva & Meyers, LLP, New York (Kevin L. Kelly of counsel), for appellants.

Lawrence Heisler, Brooklyn (Timothy J. O'Shaughnessy of counsel), for respondents.

Order, Supreme Court, New York County (Michael D. Stallman, J.), entered on or about October 20, 2015, which, insofar as appealed from as limited by the briefs, denied the motion of defendants Academy Express LLC (Academy) and Damon Bassano for summary judgment dismissing the complaint as against them, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.

Plaintiff, while a passenger on a bus owned by defendant Transit Authority, was injured when that bus collided with another bus owned by Academy, and driven by Bassano. The rear right side of the Transit Authority bus collided with the front driver's corner of the Academy bus when the Transit Authority bus changed lanes from the left to the right lane, in which the Academy bus was proceeding.

Bassano testified, without contradiction, that there was approximately one second, from when he first saw the Transit Authority bus passing him, until impact. Under such circumstances, he had no time to anticipate the Transit Authority bus cutting him off, and his actions were not negligent as a matter of law, under such emergency conditions (see Rivera v New York City Tr. Auth., 77 NY2d 322, 327 [1991]; Ward v Cox, 38 AD3d 313 [1st Dept 2007]). [*2]"[C]ourts have repeatedly rejected, as a basis for imposing liability, speculation concerning the possible accident-avoidance measures of a defendant faced with an emergency" (Caban v Vega, 226 AD2d 109, 111 [1st Dept 1996]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 19, 2016

CLERK