Edited by Lawrence N. Rogak
Plaintiff slipped and fell on an icy sidewalk below elevated subway tracks. She sued the City and the Transit Authority, alleging that water dripping from the tracks froze on the sidewalk. The Court granted summary judgment to the Transit Authority, holding that plaintiff had no proof that water dripping from the tracks froze on the sidewalk, and to the City, holding that the City had no prior written notice of the icy condition. — LNR
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Baynes, J.), which granted the motion of the defendants New York City Transit Authority and Metropolitan Transit Authority for summary judgment.
The plaintiff allegedly was injured when she slipped and fell on a patch of ice while walking on the sidewalk to a subway station located on Kings Highway in Brooklyn. She commenced this action against the City of New York, the New York City Transit Authority (NYCTA), and the Metropolitan Transit Authority (MTA), alleging that the dangerous icy condition was caused by construction on the tracks above that created runoff onto the sidewalk below. At her deposition, the plaintiff testified that she did not see water dripping from the overhead tracks and platform; however, she assumed that was how the patch of ice formed since she had seen similar conditions under other elevated platforms.
The defendants moved for summary judgment dismissing the complaint insofar as asserted against them. In an order dated June 6, 2014, the Supreme Court granted the TA defendants’ motion and denied the City’s motion.
As a general rule, “liability for a dangerous or defective condition on property is . . . predicated upon ownership, occupancy, control or special use of the property . . . Where none is present, generally a party cannot be held liable for injuries caused by the dangerous or defective condition of the property” (Noia v Maselli, 45 AD3d 746). “An owner owes no duty to warn or to protect others from a defective or dangerous condition on a neighboring premises, unless the owner had created or contributed to it” (Galindo v Town of Clarkstown, 2 NY3d 633).
Here, the evidence submitted in support of the TA defendants’ motion demonstrated, prima facie, that the sidewalk where the plaintiff fell was owned by the City. Furthermore, the TA defendants established, prima facie, that there was no construction taking place on the elevated tracks by the NYCTA on the date of the accident.
In opposition, the plaintiff’s contention that the NYCTA created the dangerous condition was too speculative to raise an issue of fact. Accordingly, the Supreme Court properly granted that branch of the TA defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against the NYCTA.
Furthermore, the Supreme Court also properly granted that branch of the TA defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against the MTA. The TA defendants demonstrated, prima facie, that the MTA was not the proper party to this action since the functions of the MTA with respect to public transportation are limited to financing and planning, and do not include the operation, maintenance, and control of any facility (see Delacruz v Metropolitan Transp. Auth.,45 AD3d 482, 483; Cusick v Lutheran Med. Ctr., 105 AD2d 681, 681). In opposition, the plaintiff failed to raise a triable issue of fact.
The Supreme Court erred in denying the City’s motion for summary judgment. Administrative Code of the City of New York § 7-201(c) “limits the City’s duty of care over municipal streets and sidewalks by imposing liability only for those defects or hazardous conditions which its officials have been actually notified exist at a specified location” (Katz v City of New York, 87 NY2d 241, 243. Accordingly, “prior written notice of a defect is a condition precedent which plaintiff is required to plead and prove to maintain an action against the City”. The only recognized exceptions to the prior written notice requirement involve situations in which either the municipality created the defect through an affirmative act of negligence, or a special use confers a special benefit upon the municipality (see Yarborough v City of New York, 10 NY3d 726. Neither exception is applicable here.
“Transitory conditions present on a roadway or walkway such as debris, oil, ice, or sand have been found to constitute potentially dangerous conditions for which prior written notice must be given before liability may be imposed upon a municipality” (Farrell v City of New York, 49 AD3d 806, 807;see Min Whan Ock v City of New York, 34 AD3d 542; Estrada v City of New York, 273 AD2d at 194).
Here, the City established its prima facie entitlement to judgment as a matter of law by demonstrating, through a search of Department of Transportation records and maps submitted by the Big Apple Pothole and Sidewalk Protection Corporation, that it had not received written notice of the alleged dangerous condition. In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court should have granted the City’s motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.
2017 NY Slip Op 05107
Decided on June 21, 2017
Appellate Division, Second Department