Opinion
14467 Index No. 23009/16 Case No. 2020–04967
10-26-2021
Jose OLIVO–FELEZ, Plaintiff–Appellant, v. COUNTY OF WESTCHESTER et al., Defendants–Respondents.
Krieger, Wilansky & Hupart, Bronx (Brett R. Hupart of counsel), for appellant. Keane & Bernheimer, PLLC, Valhalla (Katherine Woodhouse McGerald of counsel), for County of Westchester, Westchester County Department of Transportation and Bee Line Bus Company, Westchester respondents. Anna J. Ervolina, Brooklyn (Timothy J. O'Shaughnessy of counsel), for Metropolitan Transportation Authority, New York City Transit Authority and Manhattan and Bronx Surface Transit Operating Authority, NYCTA respondents.
Krieger, Wilansky & Hupart, Bronx (Brett R. Hupart of counsel), for appellant.
Keane & Bernheimer, PLLC, Valhalla (Katherine Woodhouse McGerald of counsel), for County of Westchester, Westchester County Department of Transportation and Bee Line Bus Company, Westchester respondents.
Anna J. Ervolina, Brooklyn (Timothy J. O'Shaughnessy of counsel), for Metropolitan Transportation Authority, New York City Transit Authority and Manhattan and Bronx Surface Transit Operating Authority, NYCTA respondents.
Kern, J.P., Oing, Singh, Mendez, Higgitt, JJ.
Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered September 25, 2020, which granted defendants’ motions for summary judgment dismissing the complaint, unanimously modified, on the law, to deny the motions solely on the issue of whether defendants caused the alleged defect, with leave to renew upon the completion of discovery, and otherwise affirmed, without costs.
The NYCTA defendants and Westchester defendants have no responsibility for maintaining bus shelters within the City of New York; rather, that responsibility lies with the City (see McCormick v. City of New York, 165 A.D.3d 565, 565–566, 86 N.Y.S.3d 59 [1st Dept. 2018] ; Towbin v. City of New York, 309 A.D.2d 505, 505, 765 N.Y.S.2d 242 [1st Dept. 2003] ). However, plaintiff alleges in the complaint that employees of NYCTA defendants or Westchester defendants affirmatively caused the alleged defect. Furthermore, an affidavit submitted by an employee of a Westchester defendant submitted with its motion establishes that a defendant's employees had regular physical interaction with the schedule box that allegedly caused plaintiff's injury. Accordingly, discovery is necessary on the issue of whether any of the defendants caused the alleged defect, since none of the defendants addressed the issue in their moving papers (see O'Connor v. Tishman Constr. Corp., 182 A.D.3d 502, 504, 123 N.Y.S.3d 91 [1st Dept. 2020] ; Guzman v. City of New York, 171 A.D.3d 653, 653, 99 N.Y.S.3d 286 [1st Dept. 2019] ).