Opinion
2014-01869, 2014-06076, Index No. 24399/09.
04-13-2016
Dorothy JACOBS, appellant, v. NEW YORK CITY TRANSIT AUTHORITY, respondent.
Alan R. Sirlin, Valley Stream, NY, for appellant. Lawrence Heisler, Brooklyn, NY (Anna J. Ervolina of counsel), for respondent.
Alan R. Sirlin, Valley Stream, NY, for appellant.
Lawrence Heisler, Brooklyn, NY (Anna J. Ervolina of counsel), for respondent.
CHERYL E. CHAMBERS, J.P., LEONARD B. AUSTIN, SHERI S. ROMAN and COLLEEN D. DUFFY, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Kings County (Baynes, J.), dated October 1, 2013, which, inter alia, granted the defendant's motion for summary judgment dismissing the complaint, and (2) an order of the same court dated May 5, 2014, which denied the plaintiff's motion pursuant to, inter alia, CPLR 5015(a)(3) to vacate the October 1, 2013, order.
ORDERED that the orders are affirmed, with one bill of costs.
Generally, “[t]he New York City Transit Authority [hereinafter NYCTA] owes no duty to protect a person on its premises from assault by a third person, absent facts establishing a special relationship between [the NYCTA] and the person assaulted” (Weiner v. Metropolitan Transp. Auth., 55 N.Y.2d 175, 178, 448 N.Y.S.2d 141, 433 N.E.2d 124 ; see Frazier v. Manhattan & Bronx Surface Tr. Operating Auth., 75 A.D.3d 619, 620, 905 N.Y.S.2d 657 ). A “special relationship” requires justifiable reliance by a plaintiff upon an affirmative undertaking by the municipal defendant to act on the plaintiff's behalf (Weiner v. Metropolitan Transp. Auth., 55 N.Y.2d at 178, 448 N.Y.S.2d 141, 433 N.E.2d 124 ; see Cuffy v. City of New York, 69 N.Y.2d 255, 260, 513 N.Y.S.2d 372, 505 N.E.2d 937 ; Sorichetti v. City of New York, 65 N.Y.2d 461, 469, 492 N.Y.S.2d 591, 482 N.E.2d 70 ). Nevertheless, as the Court of Appeals has recognized, an NYCTA employee's unreasonable failure to summon aid upon observing an injury being inflicted “from a vantage point offering both safety and the means to summon help without danger” may fall “within the narrow range of circumstances which could be found to be actionable” (Crosland v. New York City Tr. Auth., 68 N.Y.2d 165, 170, 506 N.Y.S.2d 670, 498 N.E.2d 143 ).
Here, in support of its motion, the defendant NYCTA demonstrated that it had no special relationship with the plaintiff, thereby establishing its prima facie entitlement to judgment as a matter of law (see Weiner v. Metropolitan Transp. Auth., 55 N.Y.2d 175, 178, 448 N.Y.S.2d 141, 433 N.E.2d 124 ; Banks v. New York City Dept. of Educ., 70 A.D.3d 988, 990, 895 N.Y.S.2d 512 ; Rios v. New York City Tr. Auth., 251 A.D.2d 484, 673 N.Y.S.2d 1020 ). In opposition, the plaintiff failed to raise a triable issue of fact (see Crosland v. New York City Tr. Auth., 68 N.Y.2d at 170, 506 N.Y.S.2d 670, 498 N.E.2d 143 ; Frazier v. Manhattan & Bronx Surface Tr. Operating Auth., 75 A.D.3d 619, 620, 905 N.Y.S.2d 657 ). The plaintiff's claims that an NYCTA employee observed another passenger injuring her on NYCTA property and failed to summon emergency assistance in a timely manner from a position of safety is based on speculation and conjecture, and thus, is insufficient to defeat the motion (see Oppenheim v. New York City Tr., Auth., 237 A.D.2d 588, 589, 655 N.Y.S.2d 645 ). Accordingly, the Supreme Court properly granted the NYCTA's motion for summary judgment dismissing the complaint (see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572 ).
The Supreme Court also properly denied that branch of the plaintiff's motion which was pursuant to CPLR 5015(a)(3) to vacate the order awarding summary judgment to the defendant dismissing the complaint, as the plaintiff failed to meet her burden of establishing fraud, misrepresentation, or other misconduct on the part of the defendant which could justify vacatur (see U.S. Bank N.A. v. Smith, 132 A.D.3d 848, 851, 19 N.Y.S.3d 62 ; Politopoulos v. City of New York, 130 A.D.3d 706, 707, 11 N.Y.S.3d 861 ; Empire State Conglomerates v. Mahbur, 105 A.D.3d 898, 899, 963 N.Y.S.2d 330 ).
The plaintiff's remaining contention is without merit (see CPLR 2221 [e] ).