Opinion
No. 100268/11.
2013-02-8
Sonia E. MILLER, Plaintiff, v. The CITY OF NEW YORK, The New York City Department of Transportation, New York City Transit Authority, Windemere Properties, LLC, Amsterdam Hospitality Group, LLC, Five Guys Construction, LLC, Colgate Scaffolding & Equipment Corp., Defendants.
Stefano A. Filippazo, Esq., Richard A. Klass, Esq., Brooklyn, for Plaintiff. Coffey & Coffey, LLP by John FK Coffey, Esq., Brooklyn, NY, for Defendant NYCTA.
Stefano A. Filippazo, Esq., Richard A. Klass, Esq., Brooklyn, for Plaintiff. Coffey & Coffey, LLP by John FK Coffey, Esq., Brooklyn, NY, for Defendant NYCTA.
Michael A. Cardozo, Esq., by Colin Marville, Esq., New York City, for Defendant City of New York.
French & Casey LLP by Richard E. Stiek, Esq., New York City for Defendant Colgate Scaffolding & Equipment Corp.
Milber, Makris, Plousadis & Seiden, LLP by Otto Cheng, Esq., White Plains, for Defendants Windemere Properties LLC, Amsterdam Hospitality Group LLC, and Amsterdam Hospitality LLC.
Paganini, Cioci, Pinter, Cusumano & Farole by Peter A. Cusumano, Esq., Melville, for Defendant Five Guys Construction LLC.
MICHAEL D. STALLMAN, J.
Upon the foregoing papers, it is ordered that the motion of the New York City Transit Authority for summary judgment is granted and the complaint is dismissed in its entirety as against said defendant, with costs and disbursements to said defendant as taxed by the Clerk of the Court, and the Clerk is directed to enter judgment accordingly in favor of said defendant; and it is further
ORDERED that the action is severed and continued against the remaining defendants; and it is further
ORDERED that this action is respectfully referred to the Trial Support Office for reassignment to a City Part.
Plaintiff alleges that on January 29, 2010 she tripped and fell on a depression in the roadway at the intersection of Ninth Avenue and West 57th Street in Manhattan. She alleges that she was crossing the street from east to west to get to the bus stop. She alleges that she fell due to a depression in the roadway and an accumulation of dirt, debris and other obstructions and conditions throughout the roadway. Plaintiff commenced this action against the City of New York (City), the New York City Transit Authority (N.Y.CTA), the abutting property owners and contractors. The NYCTA now moves for summary judgment.
The NYCTA has met its prima facie burden for establishing judgment as a matter of law. The NYCTA is not responsible for maintenance and repair of public streets and sidewalks in the City of New York. Pursuant to § 383 of the New York City Charter, public streets are the inalienable property of the City and that duty can only be shared with the abutting property owner. “The responsibility for the maintenance, repair and creation of the roadway surface lies with the ... City of New York, not the NYCTA.” (Tanzer v. City of New York, 41 A.D.3d 582, 582, 837 N.Y.S.2d 336 [2nd Dept 2007].) The fact that the alleged accident occurred near a bus stop does not change this outcome. “The duty to keep public sidewalks and roadways, including those adjacent to bus stops, in a reasonably safe condition and to repair any defects falls upon the municipality .” (Cioe v. Petrocelli Elec. Co., Inc., 33 A.D.3d 377, 378, 823 N.Y.S.2d 359 [1st Dept 2006].) Plaintiff testified at her statutory hearing that she was crossing Ninth Avenue from east to west in order to get to the bus stop. (Coffey Affirmation, Ex. F at 11–12.) She was in the street when she fell. She testified that she felt unevenness in the street and after she had fallen she realized she was in a deep depression in the street. ( Id. at 12–13, 823 N.Y.S.2d 359.) Plaintiff was still far from the bus stop when she fell. She was not in the custody or control of the NYCTA.
Plaintiff argues that there is an issue of fact because plaintiff was crossing the street to get to the bus stop and the NYCTA owes a duty to prospective passengers to provide a safe place to board the bus. However, plaintiff was in the roadway and on the opposite side of the street from the bus stop when she fell. The First Department has stated that “factors such as the vehicle's proximity to a hazardous condition and the foreseeability and seriousness of any harm such a hazard could produce will be critical in determining whether in any particular case a breach of duty has occurred.” (Blye v. Manhattan & Bronx Surface Tr. Operating Auth., 124 A.D.2d 106, 107, 511 N.Y.S.2d 612 [1st Dept 1987].) In this case, the alleged hazardous condition was not in close proximity to the bus stop and it was not foreseeable that plaintiff would fall in the alleged depression on her way to the bus stop. The path she chose was not the only available one she could take to the bus. “Only when the placement of the bus dictates that the passenger navigate a treacherous path should the public carrier be held liable for any injuries proximately caused by that hazardous condition.” ( Id. at 111, 511 N.Y.S.2d 612.) In this case, the bus stop was across the street from the hazardous condition. The plaintiff did not have to cross the street at that intersection, she could have crossed somewhere else, thus avoiding the alleged hazardous condition.
Co-defendants City, Windermere Properties, LLC, Amsterdam Hospitality Group LLC and Amsterdam Hospitality LLC argue that the motion is premature because depositions have not been held. However, the motion is not premature as the NYCTA is not responsible for public streets and sidewalks in New York City. “It is beyond cavil that responsibility for bus stops within the City of New York, including the sidewalks and curbs attendant thereto, rests solely with the City of New York and/or the owner or lessee of the abutting property.” (Coppersmith v. City of New York, 194 A.D.2d 586, 586, 599 N.Y.S.2d 75 [2nd Dept 1993].)