Opinion
10712/04.
Decided May 12, 2005.
Upon the foregoing papers, the motion by defendant New York City Transit Authority for summary judgment dismissing the complaint as against it is granted.
In this action, plaintiff maintains, inter alia, that the continued operation of express buses by defendant New York City Transit Authority at their current frequency and speed of travel constitutes a nuisance relative to the use and enjoyment of her premises located at 171 Father Capodanno Boulevard, Staten Island, New York. More specifically, plaintiff contends that the uneven repaving of two "utility cuts" made in the surface of Father Capodanno Boulevard in 1995 and 1999 on either side of her home cause it to vibrate when struck by the numerous express buses which, it is claimed, speed past her residence on a daily basis. The alleged result is the creation of structural defects ( i.e. cracks in the walls and ceiling) and a diminution in value. The relief requested includes a reduction in the number of express buses operating along Father Capodanno Boulevard.
The Transit Authority has denied these allegations and moves for summary judgment.
Inasmuch as the relief requested would involve this Court in the routing and scheduling of movant's express buses, which are utilized daily by some 9,000 commuters in the pursuit of their livelihood, plaintiff's complaint clearly states a nonjusticiable controversy as it relates to the Transit Authority and must be dismissed.
It is uncontroverted that the New York City Transit Authority was created by the Legislature as a public benefit corporation to perform a governmental function by operating the transit system in New York City ( see Public Authorities Law §§ 1201, 1202; McKechnie v. New York City Tr. Police Dept., 130 AD2d 466, 468) and, in this regard, has taken on the attributes of the State in the regulation of its public highways. In this context, it is well settled that the rights of an abutting owner are subordinate to those of government in the regulation of its roads for the benefit of the public, and that any inconvenience must be borne by the adjoining landowner ( see Cities Serv. Oil Co. v. City of New York, 5 NY2d 110; Northern Lights Shopping Ctr. v. State of New York, 20 AD2d 415, 419, affd 15 NY2d 688; see also Jamaica Chamber of Commerce v. Metropolitan Transp. Auth., 159 Misc 2d 601, 603-604 [SCt NY Co 1993]). As the Court of Appeals stated in the Cities Service case ( 5 NY2d at 115).
"[I]t is the right of the public to the use of the streets which is absolute and paramount. To promote and facilitate travel on street and highway, a municipality may, . . . in the exercise of an unquestioned governmental function, regulate and control traffic and public transportation. Unless arbitrary and capricious, such act will not be restrained nor will the courts assume the management and control of [the] highways, for . . . any judicial interference with the expert judgment of those deputed to regulate traffic is likely to cause confusion and disorder in the administration of traffic laws and result in great inconvenience to the public.
"In view . . . of [this] community interest and concern in safe and unimpeded public travel, it follows that [t]he rights of an abutter are subject to the right of [a municipality] to regulate and control the public highways for the benefit of the traveling public. Although the abutting owner may be inconvenienced by [this] regulation, if it is reasonably adapted to benefit the traveling public, he has no remedy unless given one by some express statute" (citations and internal quotation marks omitted).
In short, there can be no dispute that the resolution of the ultimate issues presented in this case as against the Transit Authority rest on policy considerations which the Court is ill-equipped and unprepared to resolve. Accordingly, in the time-honored tradition of judicial abstention, the complaint as against the Transit Authority must be dismissed. A dismissal, as here, predicated on nonjusticiability is not the product of judicial whim or indifference, but rather a considered "recognition that the tools with which a court can work, the data which it can fairly appraise, [and] the conclusions which it can reach as a basis for entering judgments, have [discernable] limits" ( Jones v. Beame, 45 NY2d 402, 409 [citation and internal quotation marks omitted]).
Inasmuch as the complaint does not allege that the Transit Authority requires or condones excessive speed in the operation of its express buses along Father Capodanno Boulevard, plaintiff's allegations of excessive speed are largely if not entirely irrelevant insofar as the Authority is concerned ( see Jones v. Beame ( 45 NY2d at 409).
This result is not inconsistent with the Court's resolution of plaintiff's prior motion for a preliminary injunction, as it is well settled that the determination on a motion for a preliminary injunction is not law of the case ( see e.g. Kaplan v. Queens Optometric Assocs., 293 AD2d 449).
Finally, even were the court to reach the merits of the Transit Authority's summary judgment motion, the speculative and largely conclusory affidavit of plaintiff's engineering expert is insufficient to defeat the Transit Authority's prima facie showing of its entitlement to judgment based, inter alia, upon the affidavit of plaintiff's original engineering consultant, Mohammed Sharif ( see Movant's Exhibit "E") ( see Sheridan v. Bieniewicz, 7 AD3d 508; Picerno v. New York City Tr. Auth., 4 AD3d 349; Billordo v. E.P. Realty Assocs., 300 AD2d 523). In this regard, it is the opinion of this Court that plaintiff's allegations of nuisance as against the Authority are grounded, ultimately, in claims of negligent operation and supervision rather than intentional conduct ( see Cepart Indus. v. Consolidated Edison Co of NY, 41 NY2d 564, 569). Accordingly, the opinion of plaintiff's expert to the effect that "vibrations" attributable mainly to the passage of heavy vehicles such as buses and trucks over the uneven utility cuts " could . . . have contributed to and advanced [a] process of (See Jones v. Beame ( 45 NY2d at 409). deterioration possibly initiated by other causes" ( see Affidavit of Arnold Kline dated March 29, 2005, para 7, emphasis supplied) must be seen as far too tentative to raise a triable issue as to one of the essential elements of her cause of action, i.e., causation.
In opposing a motion for summary judgment, plaintiffs are required to lay bare their proof and produce evidence in admissible form sufficient to raise material issues of fact ( see Zuckerman v. City of New York, 49 NY2d 557). Moreover, where, as here, an expert's affidavit constitutes the only probative evidence offered to defeat summary judgment, it is not unreasonable to require that it "contain sufficient allegations to demonstrate that [its] conclusions are more that mere speculation and would if offered alone at trial, support a verdict in the proponent's favor" ( Romano v. Stanley, 90 NY2d 444, 451-452). Here, the affidavit of plaintiff's consulting engineer (her second) can only relate that homes like plaintiff's built on loose or sandy soils are "particularly susceptible" to densification and indirect damage "when subjected to vibrations", and that he "intend[s] to testify at trial . . . to establish what I believe will be a link between the vibrations and [plaintiff's] damage" (Affidavit of Arnold Kline, paras 9-10; emphasis supplied). "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to defeat a motion for summary judgment ( Zuckerman v. City of New York, 49 NY2d at 562).
The Court passes upon no further issue.
In consonance with the foregoing, it is
ORDERED that the motion for summary judgment by the New York City Transit Authority is granted; and it is further
ORDERED that the complaint as against said defendant is severed and dismissed; and it is further
ORDERED that the Clerk enter judgment accordingly.