Corcoran v. Babylon Transit, Inc. , 743 N.Y.S.2d 550 ( 2002 )

—In an action to recover damages for personal injuries, the defendants appeal, as by their brief, from so much of an order of the Supreme Court, Richmond County (Lebowitz, J.), dated January 11, 2002, as denied their motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed insofar as appealed from, with costs.

The plaintiff alleges that he was injured on October 23, 1999, while riding on a bus owned by the defendant Babylon Transit, Inc., and driven by the defendant Lamont Wilson. His injury allegedly occurred on the Staten Island Expressway when the bus hit something in the road causing it to lift one to two feet off the ground. The plaintiff alleges that he was walking from the bathroom back to his seat at the time of the incident, that he was violently thrown upward into the ceiling of the bus, and that he landed hard on his spine causing a compression fracture.

The Supreme Court properly denied the defendants’ motion

for summary judgment. The plaintiffs estimate of the speed of the bus at the time of the injury, contained in his deposition testimony and in his affidavit submitted in opposition to the motion, constituted proof sufficient to raise a question of fact as to whether the bus was traveling at an excessive rate of speed (see Shpritzman v Strong, 248 AD2d 524; Larsen v Vigliarolo Bros., 77 AD2d 562; Lo Faso v Jamaica Buses, 63 AD2d 998). Thus, after the defendants made out a prima facie case for summary judgment, the plaintiff carried his burden of producing evidentiary proof in admissible form sufficient to defeat the motion for summary judgment (see Alvarez v Prospect Hosp., 68 NY2d 320). Florio, J.P., Smith, Friedmann and Townes, JJ., concur.