

Gonzalez v City of New York (2016 NY Slip Op 00632)





Gonzalez v City of New York


2016 NY Slip Op 00632


Decided on February 2, 2016


Appellate Division, First 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 February 2, 2016

Mazzarelli, J.P., Renwick, Manzanet-Daniels, Kapnick, JJ.


91 22248/13

[*1]Maria Torres Gonzalez, Plaintiff,
vCity of New York, et al., Defendants, Metropolitan Transit Authority (MTA), et al., Defendants-Appellants, Metro North Railroad, Defendant.


Lawrence Heisler, Brooklyn (Timothy J. O'Shaughnessy of counsel), for appellants.

Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered on or about January 7, 2015, which denied the motion of defendants Metropolitan Transit Authority (MTA) and
Manhattan and Bronx Surface Transit Operating Authority (MABSTOA) for summary judgment dismissing the complaint as against them, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.
Plaintiff alleges in her notice of claim that she tripped on a defective condition of the public sidewalk located in front of a Metro North railway station, and that the MTA and MABSTOA owned or controlled the sidewalk. In support of their motion, MTA and MABSTOA demonstrated that, while defendants City of New York and/or Metro North Railroad may be responsible for maintaining that area of the sidewalk, MTA and MABSTOA were not responsible because they did not own the sidewalk or the abutting property (see Administrative Code of City of NY § 7-210; Cabrera v City of New York, 45 AD3d 455 [1st Dept 2007]). Plaintiff, who has not submitted a response to the appeal, offered no evidence sufficient to raise an issue of fact, and did not move to amend her notice of claim to assert any other theory of liability against MTA and MABSTOA (see Scott v City of New York, 40 AD3d 408, 409-410 [1st Dept 2007]; General Municipal Law § 50-e[2], [5], [6]). Nor did she set forth any basis for believing that discovery would lead to relevant evidence against them (see Weiters v City of New York, 103 AD3d 509 [1st Dept 2013]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 2, 2016
CLERK


