ACCIDENT VICTIM DENIED SUMMARY JUDGMENT; "QUESTION OF FACT" AS TO WHETHER HE WAS ON BUS AT TIME OF ACCIDENT

Court: Supreme Court, Appellate Division, First Department, New York

Case: Yant v. Mile Square Transportation, Inc.

Date: Nov. 10, 2011

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Queens; Queens accident lawyer)

Comment: Plaintiff/accident victim lost motion for summary judgment on the issue of liability for while as a passenger on a bus he was blameless for the accident, there was an "issue of fact" as to whether he was actually on the bus at the time of the accident. Apparently, his name wasn't on the police report.

Now discovery proceeds. We can only hope that this plaintiff went to the hospital by ambulance and didn't get off the bus and go home after the accident. Also, it would be good if he knew someone else on the bus, but there's no indication of that in this appeals decision.

So if you're on a bus that has an accident, make sure the police get your name.

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Order, Supreme Court, Bronx County (Edgar G. Walker, J.), entered April 14, 2010, which granted plaintiff's motion for summary judgment on the issue of liability, unanimously reversed, on the law, without costs, and the motion denied. Appeal from order, same court and Justice, entered on or about April 12, 2011, which, insofar as appealable, denied defendants' motion to renew, unanimously dismissed, without costs, as moot.

Plaintiff established his entitlement to judgment as a matter of law by stating that he was injured when defendants' school bus hit the rear of the bus on which he was riding (see Johnson v. Phillips, 261 A.D.2d 269, 271, 690 N.Y.S.2d 545 [1999]). In opposition, defendants raised a triable issue of fact by attaching the complete police accident report, which listed all of the passengers on the buses and did not include plaintiff's name. This document, which was admissible as a business record (see Holliday v. Hudson Armored Car & Courier Serv., 301 A.D.2d 392, 396, 753 N.Y.S.2d 470 [2003], lv. dismissed in part, denied in part 100 N.Y.2d 636, 769 N.Y.S.2d 196, 801 N.E.2d 417 [2003]), raised the question of whether plaintiff was actually a passenger on the bus (see Perry v. City of New York, 44 A.D.3d 311, 842 N.Y.S.2d 435 [2007]). Accordingly, plaintiff's motion should have been denied and defendants should have been permitted to conduct discovery to determine whether or not plaintiff was indeed a passenger (see CPLR 3212[f]; Bartee v. D & S Fire Protection Corp., 79 A.D.3d 508, 913 N.Y.S.2d 73 [2010]).

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