Plaintiff Anna Condispoti alleges that she was injured on January 26, 2001 while alighting from a B3 bus operated by defendant New York City Transit Authority ("Transit.") Defendant has moved pursuant to CPLR 3212 for dismissal "on the grounds that plaintiff has failed to state a cause of action and that there are no triable issues of material fact." ( See Notice of Motion.) Because Transit has failed to establish that it is entitled to judgment as a matter of law, its motion is denied.

"A party moving for summary judgment must make a prima facie showing of its entitlement to judgment as a matter of law, producing sufficient evidence to demonstrate the absence of any material issue of fact." (See Guiffrida v Citibank Corp, 100 NY2d 72, 81 [2003].) Transit attempts to make this showing with excerpts from the transcript of Plaintiff's examination before trial and excerpts from the transcript of the examination before trial of Willard Norris, a bus operator on the B3 route in January 2001. In deciding this motion, the Court must construe the evidence in the light most favorable to Plaintiff as the party opposing summary judgment. (See Jablonski v Rapalje, 14 AD3d 484, 487 [2d Dept 2005]; Corvino v [*2]Mount Pleasant Central School District, 305 AD2d 364, 364-65 [2d Dept 2003].)

Plaintiff testified that she was a passenger on the B3 bus as it traveled Avenue U, and that she alighted the bus at the intersection of Avenue U and East 54th Street. Although there is a designated bus stop at that intersection, the bus on which Plaintiff was riding stopped in the lane of moving traffic, rather than at the curb of the bus stop, apparently because another bus was stopped at the curb of the bus stop.

Plaintiff was 76 years old at the time, 5' 2" or 5' 4" tall, and weighed 135 lbs. The driver opened the front door "in the middle of the street" (see Plaintiff's Deposition Testimony, at 14-15), but failed to lower the bus's "kneeling" mechanism. When Plaintiff stepped from the lowest step to the pavement, she fell to her left knee. She tried to stand, but couldn't. Both buses had departed.

Plaintiff was "all alone in the middle of the street" (id., at 22), fearful of being struck by a vehicle. She "walked on [her] knee" to the curb (id., at 28), and again tried to stand. Plaintiff fell a second time, breaking her nose, her right arm and right shoulder.

Plaintiff alleges that Transit was negligent, among other ways, "in failing to lower the bus," or "in failing to properly and/or adequately lower the bus"; "in failing to provide a reasonably safe location for plaintiff to get off the . . . bus," and "in failing to discharge the plaintiff at or near the curb line"; and "in failing to keep and maintain a proper lookout and watch for passengers exiting the . . . bus." (See Verified Bill of Particulars, ¶ 6.)

"To establish a prima facie case against [Transit], plaintiff must establish (1) the existence of a duty. . . to plaintiff; (2) a breach of that duty; and (3) that such a breach was a substantial cause of the resulting injury." (Gross v New York City Transit Authority, 256 AD2d 128, 129 [1st Dept 1998].) For Transit to prevail on its motion, it must show, at least prima facie, that Plaintiff cannot establish one of these essential elements of liability.

Transit attempts to satisfy its burden with two contentions. First, it asserts that Transit's failure to follow its internal rules cannot "constitute [] negligence", relying on the Second Department's decision in Carlino v Triboro Coach Corp (22 AD3d 624 [2d Dept 2005].) (See Affirmation, ¶ 8.) At oral argument, Transit's counsel contended further that Carlino precludes any claim of negligence based upon a failure to lower the steps of a bus. Second, Transit asserts that "[t]he fact that the bus operator allegedly dropped the plaintiff off between 2 buses is . . . not actionable because . . . there is no proof that dropping her off between buses is not (sic) what caused her to fall." (Id., ¶ 9.)

The reference to Transit rules is to the testimony of its bus driver, which Transit reads, at least for purposes of this motion, as requiring that "if it's not possible to drop elderly customers at the curb, you lower the bus . . . You would not pull up and discharge a passenger alongside another bus because it's a hazard." (See id., ¶ 7.) [*3]

In Carlino, the Second Department upheld the trial court's dismissal of a complaint at the close of the plaintiff's case for plaintiff's failure to establish a prima facie case of negligence. "[T]here is insufficient evidence from which a reasonable jury could conclude that the bus driver's alleged failure to lower the bus, even if requested to do so by the plaintiff, was negligent." (Id., at 625.)

"The plaintiff's reliance on the existence of a company policy of the defendant requiring the lowering of the bus for elderly passengers, and the driver's alleged failure to comply with the policy, does not state a cause of action upon which relief can be granted. The plaintiff presented no evidence that the policy was reflective of an industry standard or a generally-accepted safety practice." (Id.)

It seems unnecessary to note that Ms. Carlino's failure to present evidence of "an industry standard or a generally-accepted safety practice" does not establish Plaintiff's inability to do so, and Transit makes no showing otherwise that Plaintiff will be unable to do so.

The Second Department further states that "[i]n the absence of any testimony establishing industry standards and generally-accepted practice regarding the lowering of the bus, the plaintiff failed to define the duty she was owed by the defendant and the actionable breach of that duty." (Id.) Assuming that the statement should be understood as requiring such testimony to establish those elements of Transit's liability, again Transit makes no showing that such testimony will be unavailable to Plaintiff.

Finally as to Carlino, there is no indication that in that case the bus driver discharged the plaintiff away from the curb, where the distance from the lowest step to the pavement would have been greater, or that the bus driver proceeded on the route before observing whether the plaintiff had made it safely to a sidewalk. Transit makes no showing that, under those additional circumstances, Transit would breach no duty to Plaintiff.

"A common carrier owes a duty to an alighting passenger to stop at a place where the passenger may safely disembark and leave the area." (Miller v Fernan, 73 NY2d 844, 846 [1988]; Rios v City of New York, 33 AD3d 780, 781 [2d Dept 2006]; see also Malawer v New York City Transit Authority, 6 NY3d 800, 801 [2006].) The carrier is not relieved of that duty because a car or another bus is occupying the bus stop. (See Thomas v Jamaica Buses, Inc., 5 AD2d 843, 843 [2d Dept], aff'd 5 NY2d 862, 863 [1958]; Frazier v Westchester Street Transportation Co., Inc., 272 AD 819, 819 [2d Dept], aff'd 297 NY 620, 621 [1947].) Whether a carrier breaches its duty by discharging passengers in the roadway because another bus is occupying the bus stop would generally be a question of fact to be determined by a jury. (See Diaz v City of New York, 31 AD3d 299, 300 [1st Dept 2006]; Gross v New York City Transit Authority, 256 AD2d 128, 129 [1st Dept 2006].) Transit has not submitted any evidence to establish as a matter of law that it satisfied its duty to its alighting passenger. (See Napoli v Airbus Inc., 31 AD3d 623, 623 [2d Dept 2006].)

At common law, common carriers were deemed to owe a duty to have their vehicles [*4]"equipped with the best appliances," and to use them (see Weitzman v Nassau Electric Railroad, 33 AD 585, 587 [2d Dept 1898]; see also Smith v New York & Harlem R.R. Co., 19 NY 127, 133 [1859]), and to give "more attention and care" to "[a] sick or aged person, a delicate woman, lame man, or a child" (see Sheridan v Brooklyn City & Newtown R.R. Co., 36 NY 39, 42 [1867]; see also Thomas v Jamaica Buses, Inc., 5 AD2d 843; Lewis v Metropolitan Transit Authority, 99 AD2d 246, 251 [1st Dept], aff'd 64 NY2d 670, 671 [1984].)

Although the articulated common law "duty of highest care" or "duty of extraordinary care" has been replaced with the "basic negligence standard of reasonable care under the circumstances" (see Bethel v New York City Transit Authority, 92 NY2d 348, 351 [1998]), that standard "necessarily takes into account the circumstances with which the actor was actually confronted when the accident occurred, including the reasonably perceived risk and gravity of harm to others and any special relationship of dependency between the victim and the actor" (see id., at 353.) The standard can encompass a bus driver's duty to "direct[] attention to the passengers leaving . . . the bus." (See Malawer v New York City Transit Authority, 18 AD3d at 296.)

The Court cannot say, as a matter of law, that leaving Plaintiff away from the sidewalk, where the distance from the lowest step to the pavement is greater because of the absence of the curb, failing to lower the step with the bus's "kneeling" mechanism, or continuing on the route without observing whether Plaintiff made it safely to the sidewalk individually or in combination did not constitute negligence.

Nor can the Court say, as a matter of law, that any negligence by Transit was "irrelevant" (see Affirmation, ¶ 9), in that it was not a substantial factor in bringing about any injury to one or both of Plaintiff's knees, her nose, or her right arm or shoulder. Here again, other than counsel's conclusory statements, Transit makes no showing that any of its allegedly negligent acts or omissions was not the cause-in-fact or proximate cause of any of Plaintiff's injuries.

Since Transit failed to establish its entitlement to judgment as a matter of law, it is unnecessary to consider whether the papers submitted by Plaintiff are sufficient to raise a triable issue of fact. (See Ilardo v New York City Transit Authority, 28 AD3d 610, 611 [2d Dept 2006].)

January 26, 2007_____________________

Jack M. Battaglia

Justice, Supreme Court