Mahautiere v New York City Tr. Auth.

Mahautiere v New York City Tr. Auth. 2014 NY Slip Op 04468 Decided on June 18, 2014 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 18, 2014 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
PETER B. SKELOS, J.P.
MARK C. DILLON
SHERI S. ROMAN
JOSEPH J. MALTESE, JJ.
2012-07591
(Index No. 26531/10)

[*1]Marjolene Mahautiere, appellant,

v

New York City Transit Authority, respondent.

Solomon Rosengarten, Brooklyn, N.Y., for appellant.

Wallace D. Gossett, Brooklyn, N.Y. (Lawrence Heisler of counsel), for respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Gavrin, J.), dated May 17, 2012, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff commenced this action to recover damages for personal injuries she allegedly sustained as a result of the defendant's alleged failure to provide adequate air conditioning on a subway line operated by the defendant, on which the plaintiff was a passenger.

A party moving for summary judgment has the initial burden of demonstrating its entitlement to judgment as a matter of law (see Wright v New York City Tr. Auth., 309 AD2d 800; Sutherland v Whylie, 292 AD2d 518). Here, the defendant satisfied its prima facie burden by establishing, inter alia, that its gratuitous provision of air conditioning "created no justifiable reliance" on the part of the plaintiff (Heard v City of New York, 82 NY2d 66, 73) and thus, its purported failure to cool the train car on which the plaintiff was riding at the time of the incident did not place her "in a more vulnerable position than [she] would have been in had defendant done nothing" (id. at 72; see Malpeli v Yenna, 81 AD3d 607, 608-609). In opposition, the plaintiff failed to raise a triable issue of fact.

The parties' remaining contentions are either without merit or need not be addressed in light of our determination.

Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.

SKELOS, J.P., DILLON, ROMAN and MALTESE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court