Dursi v. New York City Transit Authority

• Decision Date: 29 November 1993
• Citation: 604 N.Y.S.2d 960,198 A.D.2d 470
• Parties: Nancy DURSI, Plaintiff-Respondent, v. NEW YORK CITY TRANSIT AUTHORITY, et al., Appellants, City of New York, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 960

604 N.Y.S.2d 960

198 A.D.2d 470

Nancy DURSI, Plaintiff-Respondent, v. NEW YORK CITY TRANSIT AUTHORITY, et al., Appellants, City of New York, Defendant-Respondent.

Supreme Court, Appellate Division,

Second Department.

Nov. 29, 1993.

Armienti, Brooks, Lubowitz, DeBellis & Dunphy, New York City (Edward P. Dunphy, of counsel), for appellants.

Salenger & Sack, New York City (Robert B. Marcus and Michael F. Schwartz, of counsel), for respondent Dursi.

O. Peter Sherwood, Corp. Counsel, New York City (Francis F. Caputo and Jane S. Earle, of counsel), for respondent City of New York.

Before THOMPSON, J.P., and SULLIVAN, MILLER, RITTER and SANTUCCI, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, the defendants New York City Transit Authority and Manhattan and Bronx Surface Transit Operating Authority appeal from an order of the Supreme Court, Kings County (Feinberg, J.), dated September 16, 1991, which denied their motion pursuant to CPLR 3212 for summary judgment dismissing the complaint or, in the alternative, to dismiss the complaint pursuant to CPLR 3211 for failure to state a cause of action.

ORDERED that the order is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.

The plaintiff was injured when she tripped and fell over a protruding concrete slab in a bus stop area located at the intersection of Avenue U and Hendrickson Street in Brooklyn. Thereafter, the plaintiff commenced this action against the New York City Transit Authority and the Manhattan and Bronx Surface Transit Operating Authority (hereinafter the Transit defendants) as well as the City of New York. The Transit defendants subsequently moved for summary judgment or, in the alternative, to dismiss the complaint for failure to state a cause of action, and their motion was denied. We affirm.

The Transit defendants correctly argue that responsibility for the maintenance of the bus stop area rested with the defendant City of New York (see, Panso v. Triboro Coach Corp., 172 A.D.2d 813, 569 N.Y.S.2d 185). However, the plaintiff also alleged that the Transit defendants actually created the condition which caused her injuries (see, Petrucci v. City of New York, 167 A.D.2d 29, 35, 569 N.Y.S.2d 624). In addition, the plaintiff alleged a special use or benefit of the area by the Transit defendants (see, Nordquist v. Piccadilly Hotel Co., 173 A.D.2d 412, 571 N.Y.S.2d 892; Giaccotto v. New York City...