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