

De La Rosa v New York City Tr. Auth. (2019 NY Slip Op 01158)





De La Rosa v New York City Tr. Auth.


2019 NY Slip Op 01158


Decided on February 14, 2019


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 February 14, 2019

Friedman, J.P., Sweeny, Webber, Kahn, Kern, JJ.


308121/12 8416

[*1] Carlos De La Rosa, Plaintiff-Respondent,
vNew York City Transit Authority, et al., Defendants-Appellants, Isabel J. Miec, et al., Defendants.


Lawrence Heisler, Brooklyn, (Timothy J. O'Shaughnessy of counsel), for appellants.
Cellino & Barnes, Buffalo (John E. Lavelle of counsel), for respondent.

Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered on or about June 13, 2018, which denied defendants New York City Transit Authority and Miguel A. Green's motion 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.
Defendants demonstrated that the accident occurred because a car traveling 40 to 50 miles per hour crossed the double yellow line into oncoming traffic, and that its driver was looking down at his phone and did not respond to the sound of the bus driver honking before hitting the bus on which plaintiff was a passenger (see Morales v Chuquillanqui, 159 AD3d 605 [1st Dept 2018]; Cropper v Stewart, 117 AD3d 417 [1st Dept 2014], lv denied 24 NY3d 914 [2015]). The bus was unable to move into the right lane because of double parked vehicles. Thus, even crediting the affidavit of plaintiff, in which he states that the bus was moving between 40 and 50 miles per hour, and not the 20 miles per hour as testified to by the driver, defendants cannot be held liable; the speed of the bus was not a factor in the collision (see Caro v Chesnick, 155 AD3d 447, 448 [1st Dept 2017]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 14, 2019
CLERK


