White v The City of New York

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White v The City of New York 2012 NY Slip Op 31415(U) May 22, 2012 Sup Ct, New York County Docket Number: 101689/10 Judge: Michael D. Stallman Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] * c SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: Hon. MICHAEL D. STALLMAN PART 21 INDEX NO. Index Number: 10168912010 WHITE, JAMEL vs . CITY OF NEW YORK SEQUENCE NUMBER : 002 10168911Q MOTION DATE MOTlONSEQ.NO. 3/26/12 002 - SUMMARY JUDGMENT -~ The following papers, numbered Ito were read on thlr motlon for aumrnary judgment 5 Notlce of Motion- Afflrmatlon - Exhlblts A-E [Affldavltl-O [Afndavltl-l Amwering Afflrmatlon Rsplylng Affirmation -___ . ?- - - Exhlbb INo@). INo(a). 14 . 5 IN d s h Upon the foregoing papers, It i ordered that this motlon for summary judgment Is s decided In accordance with the annexed decislon and order. K i .. 33 A 2 $ t$ Lg : I ? mJ 2:E S Dated: 'da$ New Yo J.S.C. , New York E k e c k one: ................................................................ 2. Check If approprlate:............................ MOTION IS: 3. Check if approprlate:................................................ CASE DISPOSED GRANTED [7 DENIED X NON-FINAL DISPOSITION 0GRANTED IN PART OTHER SElTLEORDER 0SUBMIT ORUER 0DO NOT POST c FIDUCIARY APPOINTMENT 0REFERENCE ] x [* 2] Plaintiff, Index No. 101689/10 -V- Decision and Order THE CITY OF NEW YORK, THE NEW Y O U CITY TRANSIT AUTHORITY, SHELTER EXPRESS CORP., TRANSPORTATION DISPLAYS INCORPORATED, CBS OUTDOOR GROUP INC., CEMUSA NY, LLC and CEMUSA, INC., HON.MICHAEL STALLMAN, D. J.: In this personal injury action arising out of a slip and fdl accident near a bus stop and bus shelter, defendants CBS Outdoor Group, Inc. (CBS), and Transportation Displays, h . c A . (Transportation Displays) move for summary judgment dismissing the complaint and all cross claims as against them (motion sequence 002) and plaintiff partially opposes the motion. In motion sequence 003, defendant New York City Transit Authority (NYCTA) moves to dismiss the complaint and all cross claims. Plaintiff partially opposes this motion. This decision addresses'both motions. BACKGROUND On November 2 1,2008 at approximately 1O:OOp.m., plaintiff allegedly slipped and fell on broken glass fiom a shattered bus stop shelter. The bus stop was located in front of 561 and 563 Lenox Avenue, between West 138* Street and West 139&Street. As a result of the alleged slip and fall, plaintiff sustained injuries. Plaintiff commenced this action against several defendants. [* 3] The NYCTA, CBS and Transportation Msplays now move for summary judgment dismissing the complaint and any cross claims against them, DISCUSSION [Tlhe proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such a prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. Once this showing has been made...the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action. (Alvarez v Prospect Hosp., 68 NY2d 320,325 [1986].) -. __ - Motion Sequence 002 CBS and Transportation Displays have met their prima facie burden for judgment as a matter of law. These defendants have submitted evidence that the Franchise Agreement between them and the City for the operation of bus shelters throughout the City ended on June 26,2006, approximately two years before plaintiff s accident. After that date, defendants CBS and Transportation Displays had no responsibilities, obligations or relationship to the bus stop shelters. Liability for a dangerous condition on prsperty is predicated upon occupancy, ownership, control or a special use of such premises. (Balsam v DeZma Engineering Carp., 139 AD2d 292,296 [lgtDept 19881.) CBS and Transportation Displays cannot be held liable for a condition on property it did not occupy, own, control or make special use of. Plaintiff requests, in limited opposition, that the portion of the motion granting costs and attorney s fees be denied, Regarding attorney s fees, New York State follows the American Rule wherein each party is responsible for its own attorney s fees as incidents of litigation. The American Rule prevents a prevailing party from recouping legal fees from the losing party except where authorized by statute, agreement or court rule. (Gotham Partners, L.P. v High [* 4] - River Ltd. Partnership, 76 AD3d 203 [l Dept 20101 quoting US.Underwriters Ins. Co. v City Club Hotel, LLC, 3 NY3d 592, 597 [2004].) Moreover, plaintiff does not offer any support, or indeed any argument in opposition. However, there appears no basis for a denial of costs and disbursements. Motion Sequence 003 It is well settled that the City, and/ or those with whom it contracted, is responsible fw maintaining bus stops and shelters throughout the City; the NYCTA has no responsibility for rnahtaining bus stop areas or bus shelters. [P]laintifffailed to state a cause of action to recover . . damages because of the NYCTA s failure to properly maintain andor repair the bus shelter. (Blukeney v City ofNew York, 222 AD2d 390,391 [2nd Dept 19951.) Thus, the NYCTA has met its prima facie burden for judgment as a matter of law. Plaintiff has not opposed the portions of the motion which seeks summary judgment for the NYCTA and dismissal of all the cross claims against it. A Plaintiff requests, in limited opposition, that the portion of the motion granting costs and attorney s fees be denied. Regarding attorney s fees, New York State follows the American Rule wherein each party is responsible for its own attorney s fees as incidents of litigation. The American Rule prevents a prevailing party from recouping legal fees from the losing party except where authorized by statute, agreement or court rule. (Gothnm Partners, L.P. v High River Ltd. Partnership, 76 AD3d 203 [la Dept 20101 quoting US. Underwriters Ins. Co. v City Club Hotel, LLC, 3 NY3d 592, 597 [2004].) Moreover, plaintiff does not offer any support, or indeed any argument in opposition. However, there appears to be no basis for denying costs and disbursements. CONCLUSION . -_ - [* 5] b Y - Accordingly, it is hereby ORDERED that the motion of defendants CBS OUTDOOR GROUP, INC., and TRANSPORTATION DISPLAYS, INC. for summary judgment is granted and the complaint and all cross claims are dismissed in their entirety as against said defendants, wt costs and ih disbursements to said defendants as taxed by the Clerk of the Court, and the Clerk is directed to enter judgment in favor of said defendant; and it is further ORDERED that the motion of defendant NEW YORK CITY TRANSIT AUTHORITY to _ _ .-dismiss the complaint herein is granted and the-complaint and all cross claims are dismissed in -_ their entirety BS 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 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 the action is respectfully referred to the Trial Support Office for reassignment to a City Part as the New York City Transit Authority is no longer a party to the action. Dated: May New York, N Y ENTER: A J.S.C.

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