                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: March 5, 2015                     516565
________________________________

ARTHUR BLAKE,
                    Appellant,
     v
                                            MEMORANDUM AND ORDER
FIRST TRANSIT TRANSPORTATION
   SERVICE,
                    Respondent.
________________________________


Calendar Date:   January 6, 2015

Before:   Garry, J.P., Egan Jr., Lynch and Clark, JJ.

                             __________


     Arthur Blake, New York City, appellant pro se.

      Maynard, O'Connor, Smith & Catalinotto, LLP, Albany (Aaron
F. Carbone of counsel), for respondent.

                             __________


Lynch, J.

      Appeal from an order of the Supreme Court (McNamara, J.),
entered January 29, 2013 in Albany County, which granted
defendant's motion for summary judgment dismissing the complaint.

      In July 2010, plaintiff, an inmate, was injured while
riding a bus between state correctional facilities. Respondent
was the entity that provided transportation services pursuant to
a contract with the Department of Corrections and Community
Supervision (hereinafter DOCCS). In March 2012, plaintiff
commenced this negligence action against defendant. Supreme
Court granted defendant's motion for summary judgment dismissing
the complaint on the ground that defendant did not breach any
duty of care owed to plaintiff and plaintiff appeals.
                              -2-                516565

      Plaintiff alleges that he was injured when he lost his
balance and hit his head as he was returning from using the
restroom on the bus. Primarily, he claims that his injury was
caused by DOCCS's policy that he had to be mechanically
restrained and shackled to another inmate during transport and
could only move about the bus while the bus was in motion.

      Initially, we find that defendant's argument that
plaintiff's claims are barred by the doctrine of collateral
estoppel, which was neither asserted as an affirmative defense
nor argued before Supreme Court, was not preserved for our review
(see Albany Eng'g Corp. v Hudson River/Black Riv. Regulating
Dist., 110 AD3d 1220, 1222-1223 [2013]). Turning to the merits,
as a common carrier, defendant had a duty to exercise "reasonable
care under all of the circumstances of a particular case" (Bethel
v New York City Tr. Auth., 92 NY2d 348, 356 [1998]). In order to
establish a prima facie case of negligence against a common
carrier for injuries sustained by the movement of the bus, the
plaintiff must demonstrate that there was a "jerk or lurch that
was unusual and violent" (Urquhart v New York City Tr. Auth., 85
NY2d 828, 830 [1995] [internal quotation marks and citation
omitted]; see Golub v New York City Tr. Auth., 40 AD3d 581, 582
[2007]). Where there is a claim against a common carrier that
there was an unsafe condition on the bus, a plaintiff must
demonstrate that the defendant had actual or constructive notice
of the defect or unsafe condition (see Boyd v Manhattan & Bronx
Surface Tr. Operating Auth., 9 NY3d 89, 92 [2007]).

      In our view, plaintiff's deposition testimony that he did
not slip on a wet floor, coupled with the affidavit wherein the
defendant's driver averred that he inspected the bus prior to the
trip and that the bus had a "mechanically sound and clean" dry-
system bathroom that had been inspected the day before the
accident, was sufficient to demonstrate that defendant did not
have notice of the alleged unsafe condition of the bus.
Moreover, defendant's driver explained in his affidavit that,
because the bus was designed to physically separate him from the
inmates and to prevent him from interacting with or even seeing
the inmates during transit, even if water had spilled on the
floor of the bus during the trip, he could not have had knowledge
of it. Supreme Court thus properly determined that defendant met
                              -3-                516565

its initial burden on the motion for summary judgment (see id.).

      The record also fails to support a claim that plaintiff's
injury was caused by the movement of the bus. Defendant's driver
averred that he did not recall any "abnormalities in the movement
or operation" of the bus. Similarly, plaintiff acknowledged
during his testimony that the driver did not brake suddenly or
otherwise operate the bus erratically. Although plaintiff
submitted an affidavit by another inmate who recalled that there
was a "bump and sweaval" prior to plaintiff's injury, viewing the
evidence in a light most favorable to plaintiff, the record does
not support a finding that the movement of the bus was "unusual
and violent" so as to establish a negligence cause of action
(Gioulis v MTA Bus Co., 94 AD3d 811, 812-813 [2012]).

      We also reject plaintiff's claim that defendant was
negligent because it agreed to transport inmates in accordance
with DOCCS's policy. DOCCS is solely responsible for the safety
and security of inmates in general and, as relevant here, while
they are in transit between correctional facilities (see
Correction Law §§ 23, 112). Consistent with this responsibility,
DOCCS may restrain inmates during transit (see 7 NYCRR 250.2
[h]). For its part, defendant had no authority to affect or
otherwise usurp DOCCS's obligation in this regard (see Correction
Law § 120).

      Finally, plaintiff's claim that Supreme Court should not
have granted summary judgment in favor of defendant because he
was "denied the right" to ask certain questions during a
deposition is without merit. Although the record indicates that
plaintiff attempted to question defendant's counsel at an
examination before trial, counsel had no personal knowledge of
the incident, and plaintiff did not serve any notice to depose
counsel or any person who did have personal knowledge of the
facts (see CPLR 3107). Summary judgment is not precluded where,
as here, a party does not avail himself of available disclosure
to obtain relevant facts (see Rivera v Our Lady of Knox R.C.
Church, 197 AD2d 764, 765 [1993]).

      Plaintiff's remaining arguments have been considered and
are without merit.
                        -4-                  516565

Garry, J.P., Egan Jr. and Clark, JJ., concur.



ORDERED that the order is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
