Green v City of New York

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Green v City of New York 2014 NY Slip Op 33404(U) December 16, 2014 Supreme Court, Bronx County Docket Number: 307398/10 Judge: Mitchell J. Danziger Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] ec 22 2014 Bronx County Clerk SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX --------------------------~---------------x ANDREA GREEN, DECISION AND ORDER Plaintiff(s), ... Index No: 307398/10 - against I THE CITY OF NEW YORK AND THE NEW YORK CITY TRANSIT AUTHORITY, Defendant(s). --------------------------~-------------x In this action for th~ negligent maintenance of the public roadway, defendant THE CITY OF NEW YORK (the City) order granting complaint. it summary judgment thereby moves for an dismissing the The City avers that ·because it, the Ci tY, had no prior written notice of the defect alleged, summary judgment in its favor. is warranted. Plaintiff opposes the instant motion alleging that the City fails to thus fails judgment. to e~tablish establish Moreover, the absence of prior written notice and prima· facie entitlement to summary plaintiff avers that should the Court find that the City has established prima facie entitlement to summary judgment, plaintiff's evidence nevertheless establishes that the City caused and created the condition alleged, such raising an issue of fact preclud.i,ng summary judgment. evidence Defendant THE NEW YORK CITY TRANSIT AUTHORITY (NYCTA) also moves for an order granting it summary judgment thereby dismissing the complaint on grounds that it had no duty to hor did it maintain the public Page 1 of I 21 [* 2] FILED Dec 22 2014 Bronx County Clerk 1 roadway where plaintiff allegedly fell. Plaintiff opposes NYCTA's motion averring that her cause of action against NYCTA is not merely that it failed to maintain the roadway, but that it also failed to provide her a safe, defect-free passage while boarding NYCTA's bus. For the reasons that follow hereinafter, defendants' motions are granted. The instant is action for personal injuries allegedly sustained by plaintiff on February 16, 2010 while traversing the public roadway. plaintiff Plaintiff's traversed the notices roadway of claim allege located on 3rd that Avenue at as its intersection with East 161st Street, Bronx NY, she tripped and fell on a dangerous condition located thereat. As to the City, plaintiff, within her notice of claim, alleges that it failed to maintain the roadway in a reasonably safe condition, such failure constituting negligence, accident the and sudh injuries negligence resulting causing therefrom. plaintiff's As to NYCTA, plaintiff, within her notice of· claim, makes identical illegations, but also alleges that NYCTA also failed to ~rovide "a reasonably safe passageway for those lawfully upon the public roadway." The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of Page 2 of I 21 [* 3] FILED Dec 22 2014 Bronx County Clerk law (Alvarez v Hospital, · 68 Prospect Zuckerman v City of New York, defendant seeking summary NY2d 320, 49 NY2d 557, 562 judgment must 324 [1980]). establish [1986]; Thus, a prima facie entitlement to such relief as a matter of law by affirmatively demonstrating, with evidence, the merits of the ·claim or defense, and not merely by pointing to gaps in plaintiff's proof (Mondello v Distefano, 16 AD3d 637, · 638 [2d Dept 2005]; ' City Transit Authority, 304 :AD2d 634, 634 Peskin v New York [2d Dept 2003]). Once ' movant meets the initial bu'rden on summary judgment, the burden shifts to the opponent who must then produce sufficient evidence, generally als.o in admissible form, to establish the existence of a triable issue of fact Pursuant to (Zuckerman at 562). section 7-201 (c) (2) of the Administrative Code, [n] o civil action shall be maintained against the city for damage to property or injury to person or.death sustained in consequence of any street, highway, bridge, wharf, c;:ulvert, sidewalk or crosswalk, or any part or portion of any of the foregoing including any encumbrances thereon or attachments thereto, being out of repair, unsafe, dangerous or obstru.cted, unless it appears that written notice of the defective, unsafe, dangerous or obstructed condition, was actually given to the commissioner of transportation or any person or department authorized by the commissioner to receive such notice, or where there was previous injury to person or property a$ a result of the Page 3 of I I I 21 New York City [* 4] 1 ~ FILED Dec 22 2014 Bronx County Clerk existence of the defective, unsafe, dangerous or obstructed condition, and written notice thereof was given to a city agency, or there was written acknowledgment from the city of the defective, unsafe, dangerous or obstructed condition, and there was a failure or neglect within fifteen days after the receipt of such notice ·to repair or remove the . defect, danger or obstruction complained of, or the place otherwise made reasonably safe. Accordingly, generally, a munic~pal defendant bears no liability under a defect falling within the ambit of section 7-201 (c) "unless the injured party can demonstra~e that a municipality failed or neglected to remedy a defect within a reasonable time after receipt of written notice" (Poirier v City of Schenectady, 85 NY2d 310, 313 (1995]). Even when there is evidence that the municipality had prior written notice of a defective condition, liability for the same is obviated upon evidence that the same was repaired prior to a plaintiff's accident (Lopez v Gonzalez, 44 AD3d 1012, 1013 [2d Dept. 2007] [Municipal defendant granted summary judgment because, inter alia, while it had prior written notice of the condition alleged, it had repaired it and no further written notice existed at least 15 days prior to plaintiff's accident]). the foregoing exists, however, where it is An exception to claimed that the municipal defendant affirmatively created the condition alleged to have caused plaintiff's accident, in which case, the absence of prior written notice is no barrier to liability (Elstein v City of New York, 209 AD2d 186, 186-187 [1st Dept 1994]; Bisulco v City of I Page 4 'of 21 [* 5] FILED Dec 22 2014 Bronx County Clerk New York, 186 AD2d 85, 85 [1st Dept 1992)). proceed on a theory that A plaintiff seeking to the· municipality created the defect alleged, however, must establish that the defective condition was improperly installed so as to bring the defect out of the ambit of I ordinary wear and tear (Yarborough v City of New York, 10 NY3d 726, 728 [2008]; 8 NY3d 888, Oboler v City of New York, Stated differently, the proponent of a claim that 890 [2007)). a municipal defendant created a dangerous condition must establish that work performed by the municipal defendant was negligently performed such that it "immediately result[ed] in the existence of [the] dangerous condition" alleged. ( Yaiborough at 728 [internal quotation marks omitted]). On a motion for summary judgment, [w]here the City establishes that it lacked prior written . notice under the Pothole Law, the •burden shifts to the plaintiff to demonstrate the applicability of one of two recognized exceptions to the rule-that the municipality affirmatively created the ·defect through an act of negligence or that a special use resulted in a special benefit to the locality (Yarborough at 726). With respect to whether certain documents written notice, it is well settled that Big establish prior Apple Maps can establish prior written notice upon the City (Katz v City of New I Page 5 :of ! 21 [* 6] FILED Dec 22 2014 Bronx County Clerk York, 87 NY2d 241, 243 [1995) and Sidewalk Department of Protection [\'Maps prepared by Big Apple Pothole committee, Transportation serve Inc. as and filed with prior written defective conditions depicted thereon."]. notice the of While it is certainly true that "[d]isputes as to whether the location and nature of the defect are sufficiently portrayed [on the map) so as to bring the condition to the municipality's attention involve factual questions appropriately resolved at trial": (Sondervan v City of New York, 84 ' I AD3d 625, 625-626 [1st Dept 2011]), it is also true that where the . ! symbol on the map has no corresponding syrnbo1 on the legend, the map does not provide notice as a matter of law (D'Onofrio v City of New York, 11 NY3d 581, 585 [2008) [Court set aside jury verdict where the symbol on the map did not correspond to any defect on the legend.)). However, it is well settled that citizen complaints (Lopez at 1012) or complaints to the Ci ty's 311 system do not provide prior 1 written notice of a sidewalk defect (Kapilevich v City of New York, 103 AD3d 548, 549 [1st Dept 2013]). Similarly, telephonic complaints, even if reduced to writing do not satisfy the statute either (Dalton v City of Sar~toga Springs, 12 AD3d 899, 901 [3d Dept 2004); Cenname v Town of Smithtown, 303 AD2d 351, 352 [2d Dept 2003]). This of course makes sense since § 7-201 (2) requires ''written notice of the defective, unsafe, dangerous or obstructed condition. . . to the commissioner of transportation or any person Page 6 of 21 [* 7] pj[@b bee 22 2014 Bronx County Clerk or department notice.'' authorized by th,e i~ Repair orders, even commissioner to receive such reduced to writing also fail to establish prior written notice upon a municipality sufficient to satisfy § 7-201 (Marshall v City of New York, 52 AD3d 586, 587 [2d Dept 2008] ["Contrary to the plaintiff's contention, repair orders or reports, reflecting only that pothole repairs had been made to the subject area more than a year before the accident, were insufficient to constitute prior written notice of the defect that allegedly caused the plaintiff's injuries."]; Khemraj v City of New I i . York, 37 AD3d 419, 420 [2d Dept 2007] i or 'FITS report' ["Moreover, the repair order from 1999, which reflected only that a pothole repair had been made to the subject area approximately 1 1/2 years prior to the plaintiff's fall, written notice to the City."]; plaintiff's contention, was insufficient Lopez at 1012 to constitute ["Contrary to the neither the citizen complaints nor the prior written repair orders constituted written notice of those prior defects."]) On September 14, 2003, with the passage of § 7-210 of the New York City Administrative Code, maintenance and repair of public sidewalks and any liability for a failure to perform the same, was shifted, with certain exceptions; to owners whose property abutted the sidewalk (Ortiz v City of New York, 2009], 67 AD3d 21, 25 [1st Dept revd on other grounds 14 ' NY3d 779 [2009]; Klotz v City of New York, 884 AD3d 392, 393 [1st Dept 2004]); Wu v Korea Shuttle Page i of 21 [* 8] FILED Dec 22 2014 Bronx County Clerk Express Corporation, 23 AD3dl 376, 377 [2d Dept 2005]). Specifically, §7-210 states, in pertinent part, that [i]t shall be the duty of the owner of real property abutting any sidewalk, including, but not limited to, the intersection quadrant for corner property, to maint~in such sidewalk in a reasonably safe condition. [, that] ·I the owner of real property abutting any sidewalk, including, but not limited to, the intersection . quadrant for corner property, shall be liable for any injury to property or personal injury, including death, proximately! caused by the failure of such owner to maintain such sidewalk in a reasonably s~fe :condition. [, that] [f]ailure to maintain such sidewalk in a reasonably isaf~ condition shall include, but not; be limited to, the negligent failure to install, construct, reconstruct, repave, repair or replace defective sidewa~k flags and the negligent failure to remove snow, ice, dirt or other material from the sidewalk . . . [,and that ] [t]his subdivision shall not apply to one-, two- or three-family residential real property that is (i) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes. As noted above, because of § 7-201, prior to that the passage of § 7-210, the duty to repair and maintain the public sidewalks in a reasonably safe condition rested with the municipality within which the sidewalks were located (Ortiz at 24; Weiskopf v City of New :York, 5 AD3d 202, 203 [1st Dept 2004]; Belmonte v Metropolitan Life Insurance Company, 304 A02d 471, I I Page 8 of I I I 21 474 [1st Dept 2003]). [* 9] FILED Dec 22 2014 Bronx County Clerk Accordingly, before § 7-210, an abutting landowner had no duty to maintain the public sidewalk and was not liable for an accident he/sh~ occurring thereon unless created the dangerous condition alleged or derived a special use from the sidewalk 203; Belmonte at 474). Accordingly, whereas tort liability for an defect~ve accident involving a (Weiskopf at dondition on a public sidewalk was once premised only upon the abu~ting owner's affirmative acts in making the sidewalk more hazardous, dangerous condition (Ortiz i.e., causing or creating a at 24), with the enactment of§ 7-210, it is now well settled that an owner of property abutting a public sidewalk is liable for a dangerous condition upon said sidewalk even in the absence of affirmative acts (id. at 25; Martinez v. ' City of New York, 20 A.D,3d 513, 515 [2d Dept 2005]). Despite the enactment of § 7-210, the City nevertheless remains responsible to maintain certain sidewalks such as those abutting "one-, two- or three-family residential real property that is (i) in whole or in par~, owner occupied, purposes" liable for properties and (~i) used exclusively for residential (New York City Admini!:?trative Code § 7-210 [c]), and is defects or in existing cases the oq where the sidewalks City abutting created the exempt dangerous condition alleged, or enjoyeq a special use of the area upon where the defect existed remains I because (Yarborough at 726). Additionally, the City liable to maintain the . curbs abutting public sidewalks § 7-210 only shifted the Page 9.of responsibility 21 of sidewalk [* 10] FILED Dec 22 2014 Bronx County Clerk maintenance to an abutting landowner, which is defined as "that portion of a street between the ,curb lines, or the lateral lines of ' a roadway, and the adj a cent pro'perty lines, but not including the curb, intended for the use of pedestrians" (New York City Administrative Code§ 19-10l(d); see also Ascencio v New York City Haus. Auth., 77 AD3d 592, 593 [1;st Dept 2010] [Defendant, abutting property owner granted summary judgment in an action arising from an accident on a defective portion of the sidewalk when the eviaence established that the accident occurred on the curb.]; Garris v City of New York, 65 AD3d 953, 953 [1st Dept 2009]). Thus, as is the case with any action sounding in premises liability, an owner of real property abutting a public sidewalk is now liable if it is proven that, he or she created the dangerous condition, had prior actual or constructive notice of its existence (Weinberg v 2345 Ocean Associates, LLC, 108 AD3d 524, 525 [2d Dept 2013]; Anastasio v Berry Complex, LLC, 82 AD3d 808, 809 [2d Dept 2011]), or enjoyed a special 'use of the public sidewalk (Terilli v Peluso, 114 AD3d 523, Yonkers, 106 AD3d 802, 523 [lst Dept 2014]; 803 [2d Dept Rodriguez v City of 2013]). As in any case premised on the negligent maintenance of real property, it is well settled that a prerequisite for the imposition of liability for a dangerous condition within, or, on real property, is a defendant's I occuP,ancy, ownership, control or special use of the· premises (Balsam v Delma Engineering Corporation, 139 AD2d 292, 296-297 [1st Page 10 of I I I 21 [* 11] FILED Dec 22 2014 Bronx County Clerk Dept. 1998]; Hilliard v Roe-Newark Assoc., 287 AD2d 691, Dept 2001]). 693 [2d Absent evidente of ownership, occupancy, control, or special use, liability cannot be imposed (Balsam at 297). The City's Motion The City's motion for summary judgment is hereby granted ~~ insofar as the City establi~hes:that itvno prior written notice of the defect alleged to have caused plaintiff's accident at least 15 days prior to her fall and plaintiff fails to establish that the city created the defective condition alleged through a negligent repair. Here, the City submits th,e transcript of plaintiff's 50-h hearing, where she testified - n~ver giving any specifics about the exact location of her accident - that she tripped and fell while crossing the street. Specifically, plaintiff testified on February 16, 2010, she had just left work on Brook Avenue and intended to catch the #15 bus. stop, As she traversed the roadway towards the bus which was delineated by a pole, encountered a defect on the road way. 10 feet from the pole and could she tripped when her foot When she fell, she was about not see what caused her fall because there was snow on the ground, upon returning the scene, she saw that what caused her fall was a bump on the road. The City also submits documents Page ll of 21 evincing the results of [* 12] FILED Dec 22 2014 Bronx County Clerk multiple searches it conducted of its records for the area upon which plaintiff alleges to have fallen. produced Specifically, the City documents detailing the results of several searches it conducted of its Department of Transportation (DOT) records. All searches undertaken were a period of two years prior to plaintiff's alleged accident and the docume9ts searched for were, inter alia, permits, permit applications r corrective action reports, inspection reports, cutforms, maintenance and repair records, gangsheets, and Big Apple Maps and intersection of East legends 16l5t for the roadway at or Street and Third Avenue. near the With the exception of a Big Apple Map 1 which was unearthed during almost all searches, only two searches yielded any other documents. With regard to the Big Apple Map, the accompanying legend indicates that the only portions of the roadway for which the map lists defects are crosswalks, defects and nothing on the map unearthed indicates any at any of the crosswalks at the intersection of Third Avenue and East 161 st Street. With respect to the searches that yielded records, the first was performed on September 26, 2012 and it was for the roadway located at the intersection of Third Avenue and East 16lst Street, Bronx, NY. Specifically, and to the extent relevant, the search yielded four repair orders and four gangsheets. The documents, as well as the deposition testiljlony of Omar Codling (Codling), record I searcher employed by DOT - whose deposition transcript the City I ' i Page I I l~ of 21 [* 13] FILED Dec 22 2014 Bronx County Clerk submits - evinces the following 1 • On April 21, 2009, a complaint was received about a pothole in 'the roadway in front of 3170 Third Avenue, between Brook Avenue and East 16l"t Street. According to the repair order and the related gangsheet, the same was repaired May 16, 2009. On September 17, 2009, a complaint was received about a pothole on the roadway on Third Avenue between 161"t Street and 163rd Street. According to.the repair order and the related gangsheet, the same was repaired' the very same day. 2010, a complaint was On January 7, received about a pothole in the between East 161"t Street and St Ann's Avenue. roadway According to the repair order and the related gangsheet, the same was repaired that same day. On January 8, 20~0, a complaint was received about a pothole on the roadway in front of 3202 Third Avenue between 161"t and 162~ Streets. According to the repair order and the related gangsheet, the same was repaired the very day. The other search which yielded records was performed on July 23, 2014 and was again for the intersection of East 161"t Street and Third Avenue, Bronx, NY. The search yielded three corrective action requests and records of six in.spections. documents are related to the defect alleged None of these by plaintiff and instead relate to defects surrounding manhole covers, which in any 1 To the extent that the searches yielded complaints made to 311, such complaints to the City's 311 system do not provide prior written notice of a sidewalk defect (Kapilevich at 549), and ~re, thus, not discussed 13 of 21 [* 14] FILED Dec 22 2014 Bronx County Clerk event were repaired at the latest in 2009. Based on the foregoing, .the City establishes prima facie entitlement to summary judginent' by tendering evidence that it had ,no prior written notice of any defective condition - let alone the I one alleged plaintiff f- by a:t I plaintiff alleges to plaintiff's accident. have i or fallen around at least the 15 location days where prior to As noted~above, the Big Apple Map fails to establish prior written notice since there are no potholes depicted therein within the only area said map could document the same, , , I namely, the orders, namely FITS reports do not provide a municipality with intersection. Moreover, while generally, repair prior written notice of a defective condition (Marshall at 587 [2d Dept 2008] ["Contrary to the plaintiff's contention, repair orders or reports, reflecting only thab pothole repairs had been made to the subject area more· than a · year before the accident, were insufficient to constitute ptior written notice of the defect that allegedly caused the plaintiff's •injuries."]; Khemraj at 420; Lopez at 1012), here the repair orders· submited fail to establish prior written notice for the additional reason that the potholes described therein, as evinced by the repair orders themselves, were repaired well before plaintiff's accident and, thereafter, nothing evinces that the City was provided prior written notice of the I i pothole alleged to have caused her fall (Lopez at 1013 [Municipal defendant granted summary judgment because, I Page 14' of I I 21 inter alia, while it [* 15] FILED Dec 22 2014 Bronx County Clerk had prior written notice of the condition alleged, it had repaired it and no further written notice existed at least 15 days prior to plaintiff's accident.]). Thus, the City establishes prima facie entitlement to summary judgmenti Nothing submitted by plaintiff raises sufficient to preclude summary ]udgment. an issue of fact Contrary to plaintiff's assertion, even if the repair orders unearthed by the City provide it with prior written notice of .the defect alleged to have caused her .injury, those same repair or~ers evince that any potholes about which the City received complaints were repaired long before her fall. other Thereafter, legally alleged. and prior to her fall, cognizable prior written the City received no notice of the defect To the extent that plaintiff tenders an affidavit from Stanley Fein (Fein), a Professional Engineer, averring that the City caused and created the condition which caused plaintiff's accident, such claim is As noted above, meritles~. it is ijrue that plaintiff can proceed on a theory that the municipality created the defect alleged, esta~lishes if he that the defective condition was improperly installed so as to bring the defect out of the ambit of ordinary wear and tear (Yarborough at 728; Oboler at 890), namely, that defendant was "immediately negligent result [ed] in the repair in the existence PagE[ 15 of I I I ' 21 performed of such [the] municipal that it dangerous [* 16] .FILEQ Dec 22 2014 Bronx County Clerk condition" alleged omitted]). (Yarborough at 728 However, . it • lS e.qually [internal quotation marks well settled that expert testimony must be based on facts in the record or personally known to the witness, and that an expert cannot reach a conclusion by assuming material facts not supported by record evidence (Cassano v. Hagstrom, 5 NY2d 643, 646 [1959); Gomez v New York City Haus. Auth., 217 AD2d 110, 117 [1995); .Matter of Aetna Cas. & Sur. Co. v Barile, 86 AD2d 362, 364-365 [198iJ). based on his Here, while Fein states that review of the photographs taken after plaintiff's accident, the defective condition· upon which she fell was caused by the City's improper prior repair .of the pothole existing thereat, there is absolutely no evidence in this record detailing how the City repaired the potholes alleged. Thus, Fein's opinion, reached in the absence of such information is speculative and insufficient to establish that the City caused or created the condition alleged and that the defect alleged was, thus, not the result of ordinary wear and tear 2002) (Matter of Chiurazzi, 296 AD2d 406, 407 [2d Dept [uThe testimony of the objectants' experts, who never met or treated the decedent, was speculative, and, thus, not entitled to any weight."]; Quinn v Artcraft;; Construction, Inc., 203 AD2d 444, 445 [2d Dept 1994) when he sought to [Court preciuded expert opinion as speculative opine that window which caused plaintiff's acciderit was improperly installed despite not having examined the same until 11 years after the accident]). ! ; Page 116 o~ I ' 21 Accordingly, the City's [* 17] FILEO Dec 22 2014 Bronx County Clerk ' motion is granted. NYCTA's Motion NYCTA's motion for summary, judgment is granted insofar as it establishes that it was not responsible for the maintenance nor repair of the public roadway updn which plaintiff alleges to have fallen. NYCTA further establishes that it did nothing to compel plaintiff to traverse the defect .alleged as she attempted to catch the public bus. Here, NYCTA submits plaintiff's deposition transcript wherein she testified that her accident occurred on February 10, 2010 near the bus stop on East 161 st. Street and Third Avenue. Plaintiff testified that she had just exited her place of employment and proceeded to cross the street in the middle of the block - rather than the crosswalk street. intending to catch the #15 bus across the As she neared the bus stop, and when she was only a few inches away, she felt her foot enter a hole under a large amount of snow, tripping and falling as a result. Plaintiff testified that as she approached the bus stop, the bus had not yet arrived. also submits Sara Wyss' (Wyss) NYCTA deposition transcript an employee with NYCTA, who testified that NYCTA neither maintains, owns, nor controls the public roadways. Wyss .also testified that NYCTA does not make repairs nor does it inspect bus stops. Page [* 18] FILED Dec 22 2014 Bronx County Clerk Based on the foregoing, liability can only be since is well settled that premises premised on a defendant's occupancy, ownership, control or special use of the premises (Balsam at 296297; Hilliard at 693), here NYCTA establishes with Wyss' I testimony that having no duty to repair and having made no repairs I to the subject roadway, it cannot be liable for the defect alleged. Moreover, while it is true that "[a] common carrier is under a duty to provide a direct entrance prospec~ive onto the passenger with a reasonably safe, vehicle, clear of any dangerous obstruction or defect which wou]d impede that entrance" (Ausderan v City of New York, 219 AD2d 562, 563 [1st Dept 1995] [internal quotation marks omitted]), the b:r;each of that duty generally hinges I . . on whether the carrier did anything to compel or even suggest that the passenger walk across a defe2tive path or whether the passenger chose the dangerous path carrier (id. at 563). wi~houi the guidance or discretion of the This, of course stems from the well settled principle that a common carrier's duty with regard to a boarding passenger is the same owed to one alighting from its bus - namely, that "[a] common carrier owes a duty to an alighting passenger to stop at a place where the passenger may safely disembark and leave the area" (Miller v FernaJ1, 73 · NY2d 844, 846 [1988]; Smith v Sherwood, 16 NY3d 130, 133 [2011]; Fagan v Atlantic Coast Line R.R. Co., 220 NY 301, 306 [1917]; Kasper v Metropolitan Transp. Authority Long Island Bus, 90 AD3d 998, 999 [2d Dept 2011]). Page 18 of 21 Any [* 19] FILED Dec 22 2014 Bronx County Clerk duty owed, however, generally ends upon that passenger's exit from the common carrier's vehicle (Wisoff v County of Westchester, 296 AD2d 402, 402 [2d Dept 2002) ["duty to the infant plaintiff as a ! passenger terminated when the infant plaintiff alighted safely onto the sidewalk"]; Sigmond v Liberty Lines Transit, Inc., 261 AD2d 385. 387 [2d Dept 1999]), and even when the operator of the vehicle is in violation of a traffic regulation, but a passenger 'makes an independent and voluntary choice of departing from a safe alighting point onto a hazardous road condition, caused by the improper placement of the vehicle, courts will not impose liability on the common carrier (Blye v Manhattan and Bronx Surface Transit Operating Authority, 124 AD2d 106, 109 [1st Dept 1987]). The same is, thus, true with respect to a boarding passenger and there can be no liability for a passenger's condition where independent the choice common-carr;Ler to venture onto did nothing to a defective compel that decision (Ausderan at 563). Here, NYCTA' s evidence establishes that it did nothing to compel plaintiff access the bus stop from the middle of the street, particularly because the bus ~ad dot yet arrived. This distinction is critical since an argument could be made and a different result reached if, for example, the bus had been stopped at the bus stop 1 in a manner compelling plaintiff.to traverse the defect alleged. Accordingly, since plaintiff's path to the bus stop was the result Page 19 ,of . ' I 21 [* 20] r' FILED Dec 22 2014 Bronx County Clerk of her independent action, such.choice causing her to traverse the defect alleged, NYCTA establishes that it bears no liability for th~ plaintiff's accident, under theory that it breached the duty owed as a common carrier to provide plaintiff with a reasonably safe passageway for those lawfully upon the public roadway. NYCTA ' thus establishes prima facie entitlement to summary judgment. Nothing submitted by plaintiff raises sufficient to preclude summary judgment. an issue of fact The affidavit submitted by plaintiff merely reiterates her deposition testimony and while therein plaintiff adds that the bus was approaching at the time of her accident, such fact is not tantamount to action by NYCTA compelling plaintiff to access the bus stop in the manner and from the direction chosen. NYCTA's ~otion is, therefore, granted. It is hereby ORDERED that the complaint against defendants be dismissed, with prejudice. It is further I Page 20 of I I I I 21 [* 21] FILED Dec 22 2014 Bronx County Clerk ORDERED that NYCTA and the City serve a copy of this Decision and Order with Notice of Entry upon plaintiff within thirty (30) days hereof . .. Dated : December 16, 2014 Bronx, New York . i Page' 21 iof I ' i : i 21

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