        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1037
CA 15-01959
PRESENT: SMITH, J.P., CENTRA, PERADOTTO, LINDLEY, AND CURRAN, JJ.


JAMES R. WITTMAN, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

ROBERT NICE, ET AL., DEFENDANTS,
AND LANCASTER CENTRAL SCHOOL DISTRICT
BOARD OF EDUCATION, DEFENDANT-RESPONDENT.


BROWN CHIARI LLP, BUFFALO (BRADLEY D. MARBLE OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

SUGARMAN LAW FIRM, LLP, BUFFALO (JENNA W. KLUCSIK OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Shirley
Troutman, J.), entered September 2, 2015. The order granted the
motion of defendant Lancaster Central School District Board of
Education for summary judgment dismissing all the “claims and cross[]
claims” against it.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking to recover
damages for injuries he sustained when he was struck by a vehicle
operated by defendant Robert Nice while plaintiff was crossing
Pavement Road to go from his mailbox to his residence. Just before
the collision, a school bus passed by plaintiff, activating its yellow
flashing lights. Nice was approaching from the opposite direction,
but the bus continued past Nice without activating its red lights or
stopping. Nice then accelerated and continued down the road. Upon
seeing the bus activate its yellow flashing lights, plaintiff looked
left in the direction from which Nice was approaching, and observed
what appeared to be oncoming vehicles slowing down. Plaintiff then
looked right, observing vehicles stopping behind the bus. At that
point, plaintiff proceeded into the road, where he was struck by Nice.
With respect to Lancaster Central School District (defendant), which
plaintiff improperly sued under the name Lancaster Central School
District Board of Education, plaintiff contended that defendant was
liable for the injuries he sustained in the accident because the bus
driver operating defendant’s school bus was negligent by, inter alia,
“flashing the yellow signal and failing to come to a complete stop.”

     Contrary to plaintiff’s contention, we conclude that Supreme
                                 -2-                          1037
                                                         CA 15-01959

Court properly granted defendant’s motion for summary judgment
dismissing the “claims and cross[] claims” against it. Defendant
“demonstrated [its] prima facie entitlement to judgment as a matter of
law by establishing that the bus was operated in a prudent and
reasonable manner and [that] the driver acted with due care under the
circumstances” (Clark v Amboy Bus Co., 117 AD3d 892, 892). Defendant
established that the bus driver was not negligent by submitting
evidence that “the bus was traveling within the speed limit, did not
decelerate in an improper manner, and was otherwise operated in
accordance with New York State and School District guidelines,
policies and procedures” (Green v South Colonie Cent. Sch. Dist., 81
AD3d 1139, 1141 [emphasis added]; see generally Karchere v Pioneer
Transp. Corp., 213 AD2d 700, 701). The burden thus shifted to
plaintiff to raise a triable issue of fact (see generally Zuckerman v
City of New York, 49 NY2d 557, 562).

     Plaintiff’s submissions in opposition to the motion consisted
mostly of materials already submitted by defendant. The only relevant
submission containing any new evidence was an affidavit from an expert
in accident reconstruction. We conclude that the expert’s averments
fail to raise a triable issue of fact sufficient to defeat the motion.

     First, the expert averred that “a driver of a school bus has to
stop at each and every designated stop,” but the expert “cite[d] no
industry standard, treatise or other authority in support of his
opinion” (Burton v Sciano, 110 AD3d 1435, 1437). Neither the Vehicle
and Traffic Law nor the New York State Department of Motor Vehicles
Commercial Driver’s Manual requires a school bus driver to stop at a
designated bus stop if no child is waiting there for the bus. The
expert’s opinion is “speculative or unsuppported by any evidentiary
foundation . . . [and] is [thus] insufficient to withstand summary
judgment” (Diaz v New York Downtown Hosp., 99 NY2d 542, 544; see
Romano v Stanley, 90 NY2d 444, 451-452; Rost v Stolzman, 81 AD3d 1401,
1403). It is therefore irrelevant whether the bus eventually
activated the red lights and stopped after passing by Nice.

     Although plaintiff correctly contends that the technical or
scientific basis for an expert’s conclusions “ordinarily need not be
adduced as part of the proponent’s direct case . . . , an expert’s
affidavit proffered as the sole evidence to defeat summary judgment
must contain sufficient allegations to demonstrate that the
conclusions it contains are more than mere speculation and would, if
offered alone at trial, support a verdict in the proponent’s favor”
(Romano, 90 NY2d at 451-452 [emphasis added]; see Ramos v Howard
Indus., Inc., 10 NY3d 218, 224).

     Second, the expert’s opinions concerning the bus driver’s alleged
negligence have no evidentiary basis in the record. The expert
recounted that the bus driver had testified that he used the lights
“to illuminate the roadway” and “was improperly using the yellow
flashing lights of the bus.” Again, the expert “cite[d] no industry
standard, treatise or other authority in support of his opinion”
(Burton, 110 AD3d at 1437). In our view, there is “no evidentiary
basis for the [expert’s] conclusion that [the bus driver improperly
                                 -3-                          1037
                                                         CA 15-01959

used the yellow lights]” (Keller v Liberatore, 134 AD3d 1495, 1496;
see Rost, 81 AD3d at 1403; see generally Diaz, 99 NY2d at 544). “[I]n
the absence of any evidence that negligence on the part of [defendant]
contributed to the accident, the plaintiff[] ha[s] failed to state a
cognizable theory for recovery against [defendant]” (O’Connor v
Mahopec Cent. Sch. Dist., 259 AD2d 530, 531). Based on our
conclusions that defendant established as a matter of law that it is
not liable for the accident and that plaintiff failed to raise a
triable issue of fact concerning defendant’s liability, we see no need
to reach the remaining contentions of the parties.




Entered:   November 18, 2016                   Frances E. Cafarell
                                               Clerk of the Court
