Minahan v New York City Tr. Auth.

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Minahan v New York City Tr. Auth. 2023 NY Slip Op 33005(U) August 29, 2023 Supreme Court, New York County Docket Number: Index No. 162252/2019 Judge: Denise M. Dominguez Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: NEW YORK COUNTY CLERK 08/30/2023 12:59 PM NYSCEF DOC. NO. 48 INDEX NO. 162252/2019 RECEIVED NYSCEF: 08/30/2023 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: 21 PART HON. DENISE M DOMINGUEZ Justice ---------------------------------------------------------------------------------X ANN MINAHAN, INDEX NO. 162252/2019 MOTION SEQ. NO. _ ____;_00___1_ __ Plaintiff, - V - NEW YORK CITY TRANSIT AUTHORITY, METROPOLITAN TRANSPORTATION AUTHORITY DECISION+ ORDER ON MOTION Defendants. The following e-filed documents, listed by NYSCEF document number (Motion 001) 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47 SUMMARY JUDGMENT(AFTER JOINDER were read on this motion to/for Upon the foregoing documents, Plaintiffs motion for partial summary judgment pursuant to CPLR §3212 against the Defendants is denied and the Defendants~ motion for summary judgment pursuant to CPLR §3212, dismissing the complaint, is granted. This personal injury action arises out of an August 15, 2019 incident wherein the Plaintiff, ANN MINAHAN, alleges that she was caused to trip and fall due to a defective, uneven and cracked sidewalk condition .located near a sidewalk grate along the sidewalk abutting 620 6th Avenue in Manhattan. (NYSCEF Doc. 14). The Plaintiff timely moved, post-note of issue, for summary judgment against the Defendants seeking to establish claims sounding in negligence against the Defendants for the alleged defective condition in the sidewalk and to dismiss the culpable conduct affirmative defense. The Defendants opposed the Plaintiffs motion and cross-move for summary judgment seeking to dismiss the complaint, asserting that they did not owe the Plaintiff a legal duty of care. Upon review, the Defendants have met their primafacie burden by establishing that they did not owe the Plaintiff a legal duty of care as that they did not own or control the subject grate. The Plaintiff has not met her prima facie burden in establishing negligence on the part of the Defendants and raises no material issues of fact. Accordingly, the Plaintiffs motion for partial summary judgment is denied and the Defendants .cross-motion for summary judgment is granted. 162252/2019 MINAHAN, ANN vs. NEW YORK CITY TRANSIT Motion No. 001 [* 1] 1 of 4 Page 1 of 4 FILED: NEW YORK COUNTY CLERK 08/30/2023 12:59 PM NYSCEF DOC. NO. 48 INDEX NO. 162252/2019 RECEIVED NYSCEF: 08/30/2023 TRANS/T's Summary Judgment Cross-Motion CPLR §3212 provides any party in any action, including in a negligence action, to move for summary judgment. (CPLR §3212 [a], Andre v. Pomeroy, 35 N.Y.2d 361, 320 N.E.2d 853 [1974]). '.fhe party seeking summary judgment, even if unopposed, has the high burden of establishing entitlement to judgment as a matter of law with evidence in admissible form (see CPLR §3212 [b], Voss v Netherlands Ins. Co., 22 N.Y.3d 728, 734, 8 N.E.3d 823 [2014], Giuffrida v Citibank Corp., 100 N.Y.2d 72, 81, 790N.E.2d 772 [2003],Alvarezv Prospect Hosp., 68 N.Y.2d 320, 324~25, 501 N.E.2d 572, 574 [1986], see also Zuckerman v City ofNew York, 49 NY2d 557 [1980]). "Once this showing has been made, however, 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 68 N.Y.2d at 324). The Plaintiffs complaint asserts a single cause of action against the Defendants sounding in negligence based upon the Defendants' purported ownership, control and/or management of the subject grating located in the sidewalk abutting 620 6th Avenue. Upon a review of the Plaintiff's photos and expert report of Scott Silberman (who performed an August 25, 2022 site visit), the sidewalk grating is located on the East side of 6th Avenue in front of a "Marshalls" storefront and appears to be closer to the intersection with 19th Street (NYSCEF Doc. 23, 25, 27). The Defendants submit the affidavit of Heriberto Hernandez ("Hernandez", NEW YORK CITY TRANSIT AUTHORITY's Associate Project Manager Level II which is supported by a Plan of Sidewalk Grating (NYSCEF Doc. 34, 33). As per Hernandez' affidavit, the Plan of Sidewalk Grating only reflects NEW YORK CITY TRANSIT AUTHORITY's gratings. Based upon Hernandez' review of the Plan of Sidewalk Grating, Hernandez avers that there are no subway grates in the area where the Plaintiffs accident occurred. The only subway grates on the East side of 6th Avenue are closer to 18 th Street. Hernandez· also testified at a deposition in this matter wherein he offered testimony regarding the Plan of Sidewalk Grating and his inspection consistent with that in his affidavit. (NYSCEF Doc. 24). "' [L]iability for a dangerous or defective condition on property is generally predicated upon ownership, occupancy, control or special use of the property ... Where none is present, a party cannot be held liable for injuries caused by the dangerous or defective condition of the 162252/2019 MINAHAN, ANN vs. NEW YORK CITY TRANSIT Motion No. 001 · [* 2] 2 of 4 Page 2 of 4 INDEX NO. 162252/2019 FILED: NEW YORK COUNTY CLERK 08/30/2023 12:59 PM NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 08/30/2023 property'." (Minott v. City of New York, 230 A.D.2d 719, 720, 645 N.Y.S.2d 879 [1996] quoting Turrisi v. Ponderosa Inc., 179 A.D.2d 956,957,578 N.Y.S.2d 724 [3d Dept 1992]). The Defendants have presented sufficient and uncontroverted evidence that they did not owe the Plaintiff a legal duty of care as they did not own, control or manage the subject grate or sidewalk. In opposition, the Plaintiff offers no admissible evidence raising a material issue fact with respect to the Defendant's purported ownership or control of the sidewalk or grate. The Plaintiffs argument that the Defendants should be precluded from denying ownership of the grates based upon their alleged failure to respond to the Plaintiffs March 27, 2020 notice to admit is unavailing. Upon review, it is clear that the Defendants denied owning, operating, managing, controlling and supervising the subject grating in their February 28, 2020 answer (NYSCEF Doc. 5). Moreover, there is no evidence that the Defendants were properly served with the notice to admit. (NYSCEF Doc. 18). The Defendants deny being served with the notice to admit and question when and how the notice to admit was served, pointing out that there is no affidavit of service, it was not served via NYSCEF and apparently was sent during the height of the COVID-19 pandemic "lockdown". Nor is the owed response accounted for in the subsequent July 1, 2021 preliminary conference order. (NYSCEF Doc. 8). Further, in light of the fact that the ownership of the grating was clearly denied in the Defendants' answer, repeating such allegations in the notice to admit was not proper. "A notice to admit pursuant to CPtR 3123(a) is to be used only for disposing of uncontroverted questions of fact or those that are easily provable, not for the purpose of compelling admission of fundamental and material issues or ultimate facts that can only be resolved after a full trial." (Meadowbrook-Richman, Inc. v. Cicchiello, 273 A.D.2d 6, 6, 709 N.Y.S.2d 521, 522 (2000); see also Washington v. Alco Auto Sales, 199 A.D.2d 165, 165, 605 N.Y.S.2d 271 [1st Dept 1993]). Finally, this Court would be remised if it did not take note that, the Plaintiff has not detrimentally relied upon any misrepresentation by the Defendants. In fact, it appears that based upon the information relayed by Hernandez at his deposition, the Plaintiff . commenced a separate action against the both the apparent property owner and ConEd pending in . this Court, Index No. 151862/2022, on or about March 2, 2022. Furthermore, even if the subject grate was a subway grate, pursuant to Section 7-210 of the .. New York City Administrative Code and Title 34 of the Rules & Regulations of the City of New York §2-07(b)(l) the City of New York as the actual owner of the subway grating (as per the 1953 Lease Agreement between the City of New York and the NEW YORK CITY TRANSIT 162252/2019 MINAHAN, ANN vs. NEW YORK CITY TRANSIT Motion No. 001 [* 3] 3 of 4 Page 3 of 4 INDEX NO. 162252/2019 FILED: NEW YORK COUNTY CLERK 08/30/2023 12:59 PM NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 08/30/2023 AUTHORITY who holds the non delegable duty to maintai:t;1 the 12 inch area around the grates. (See Fajardo v. City of New York, 197 A.D.3d 456, 148 N.Y.S.3d 908 [2d Dept 2021]). Upon review, as the Appellate Division, . First Department has not ruled otherwise . on this issue, Fajardo is controlling. Thus, this Court is bound by Appellate Division authority holding as a matter of law that the City of New York, and not the Defendants, is the owner of sidewalk subway ventilation grates and would have the non:..delegable duty to maintain the grate. Accordingly, the Defend.ants have met their prima facie burden in establishing that as they did not own of the subject grate or sidewalk, and did not have a duty to maintain either in a reasonably safe condition. For the reasons set forth herein, the Plaintiff's motion for partial summary judgmentis denied as the Plaintiff cannot establish that the Defendants owed the Plaintiff a legal duty of care. That branch of the Plaintiffs motion which seeks a dismissal of the affirmative defense of culpable conduct is denied as moot: Accordingly, it is hereby ORDERED that defendant's motion for summary judgment is granted and:fue complaint is · dismissed with costs and disbursements to defendant as taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further · ORDERED that the Clerk is directed to enter judgment accordingly. ORDERED that the Defendants shall serve a copy of this order with notice of entry upon. the Clerk of the Court (60 Centre Street, Room 141B) and the Clerk of the General Clerk's Office (60 Centre Street, Room 119); and it is further ORDERED that such service upon the Clerk of the Court and the Clerk of the General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "EFiling" page on the court's website). 8/29/2023 DATE CHECK ONE: CASE DISPOSED GRANTED APPLICATION: CHECK IF APPROPRIATE: . DENIED SETTLE ORDER INCLUDES TRANSFER/REASSIGN 162252/2019 MINAHAN, ANN vs. NEW YORK CITY TRANSIT Motion No. 001 [* 4] 4 of 4 ~ NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT . REFERENCE Page4of4

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