Bardavid v. New York City Transit Authority
| Decision Date | 04 October 1983 |
| Parties | Lily BARDAVID, et al., Plaintiffs-Respondents, v. NEW YORK CITY TRANSIT AUTHORITY, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
S.I. Cohen, New York City, for plaintiffs-respondents.
L. Heisler, Brooklyn, for defendant-appellant.
Before SANDLER, J.P., and ASCH, SILVERMAN, BLOOM and KASSAL, JJ.
Order, Supreme Court, New York County, entered September 29, 1982, denying defendant's motion for summary judgment, unanimously reversed, on the law, without costs or disbursements, the motion for summary judgment granted and the complaint dismissed.
Plaintiff in this negligence action sought to recover for injuries sustained when she was mugged on April 26, 1978, at the Fort Washington entrance to the 190th Street IND subway station, which is located inside Fort Tryon Park. To enter the station, patrons must descend a flight of stairs into an alcove, containing elevators to convey them to the lower level where the token booths and subway are located. Plaintiff alleges that the Transit Authority, aware of a history of assaults and muggings, sought to minimize the danger by installing an electric sign, observable from the street, to indicate that the elevator was approaching the upper level. Additional instructions were given to the elevator operators to remain at the upper level to allow patrons sufficient time to descend the stairs from the park to permit passengers to remain on a public thoroughfare, in relative safety, until the elevator had arrived. Undisputed is that on the day of the incident the electric sign was not functioning. Plaintiff claims that defendant, as a common carrier, neglected its duty to take reasonable precautions for the protection and safety of its patrons. She claims that had she been given notice of the discontinuance of the service, she would have been afforded some opportunity to avoid the risk of harm.
Previously, defendant had moved for summary judgment dismissing the complaint, claiming that it owed no duty to provide for the safety of its passengers. Relying upon our prior disposition in Weiner v. Metropolitan Transportation Authority, 80 A.D.2d 514, 435 N.Y.S.2d 594, we reversed the order of Justice Blangiardo which had granted the motion and we held that where a common carrier was on notice that attacks had occurred in the area, there was a duty to take reasonable precautions to prevent a recurrence (82 A.D.2d 776, 440 N.Y.S.2d 648). The Court of Appeals, however, disagreed with our determination in Weiner and, in reversing, held: "The New York City Transit Authority owes no duty to protect a person on its premises from assault by a third person, absent facts establishing a special relationship between the authority and the person assaulted." (Weiner v. Transp. Auth., 55 N.Y.2d 175, 178, 448 N.Y.S.2d 141, 433 N.E.2d 124).
In reliance upon the Court of Appeals determination in Weiner, defendant here renewed its motion for summary judgment dismissing the complaint. Special Term, in...
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Lopez v. Southern Cal. Rapid Transit Dist.
...375 N.E.2d 763 and Schuster v. City of New York (1958) 5 N.Y.2d 75, 180 N.Y.S.2d 265, 154 N.E.2d 534; see also Bardavid v. NYCTA (1983) 97 A.D.2d 353, 467 N.Y.S.2d 360, 361.) As we have explained, this analysis applies only where there does not already exist a special relationship between t......
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