Sanon v. MTA Long Island R.R.

• Decision Date: 02 March 2022
• Docket Number: 2018–14839,Index No. 606250/17
• Citation: Sanon v. MTA Long Island R.R., 203 A.D.3d 773, 164 N.Y.S.3d 175 (N.Y. App. Div. 2022)
• Parties: Marie SANON, appellant-respondent, v. MTA LONG ISLAND RAILROAD, et al., respondents, Town of Babylon, respondent-appellant, et al., defendant.
• Court: New York Supreme Court — Appellate Division

203 A.D.3d 773

164 N.Y.S.3d 175

Marie SANON, appellant-respondent,

v.MTA LONG ISLAND RAILROAD, et al., respondents,Town of Babylon, respondent-appellant, et al., defendant.

2018–14839

Index No. 606250/17

Supreme Court, Appellate Division, Second Department, New York.

Argued—December 10, 2021

March 2, 2022

Law Offices of Fred M. Ainsley, P.C., Hauppauge, NY (Fred M. Ainsley, Jr., of counsel), for appellant-respondent.

Mark A. Cuthbertson, Huntington, NY (Matthew DeLuca of counsel), for respondent-appellant.

Shein and Associates, P.C., Syosset, NY (Jeffrey Shein, Susan R. Nudelman, and Barry Montrose of counsel), for respondents.

COLLEEN D. DUFFY, J.P., ANGELA G. IANNACCI, JOSEPH J. MALTESE, WILLIAM G. FORD, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals, and the defendant Town of Babylon cross-appeals, from an order of the Supreme Court, Suffolk County (Martha L. Luft, J.), dated November 21, 2018. The order, insofar as appealed from, granted that branch of the motion of the defendants MTA Long Island Railroad and Metropolitan Transportation Authority which was for summary judgment dismissing the complaint insofar as asserted against them and denied the plaintiff's cross motion for summary judgment on the issue of liability against the defendant Town of Babylon. The order, insofar as cross-appealed from, denied the motion of the defendant Town of Babylon for summary judgment dismissing the complaint insofar as asserted against it and granted that branch of the motion of the defendants MTA Long Island Railroad and Metropolitan Transportation Authority which was for summary judgment on their cross claim for contractual indemnification insofar as asserted against it.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting those branches of the motion of the defendants MTA Long Island Railroad and Metropolitan Transportation Authority which were for summary judgment dismissing the complaint insofar as asserted against them and on their cross claim for contractual indemnification insofar as asserted against the defendant Town of Babylon, and substituting therefor a provision denying those branches of the motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

In 2016, the plaintiff allegedly was walking on a sidewalk in the proximity of the Wyandanch station of the Long Island Rail Road, located in the Town of Babylon, when she allegedly tripped and fell over an exposed metal bolt protruding from the sidewalk. The metal bolt had been installed in the sidewalk years earlier by the Town in order to anchor a heavy trash can, which had been moved at some point prior to the accident, leaving the bolt exposed.

The plaintiff commenced this personal injury action against the Town, the defendants MTA Long Island Railroad and Metropolitan Transportation Authority (hereinafter together the MTA defendants), and another defendant. The MTA defendants asserted a cross claim for contractual indemnification. The MTA defendants moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against them and on their contractual indemnification cross claim insofar as asserted against the Town. The Town moved for summary judgment dismissing the complaint insofar as asserted against it. The plaintiff cross-moved for summary judgment on the issue of liability against the Town. In an order dated November 21, 2018, the Supreme Court, inter alia, granted those branches of the MTA's motion and denied the Town's motion and the plaintiff's cross motion. The plaintiff appeals, and the Town cross-appeals.

Contrary to the Supreme Court's conclusion, the MTA defendants failed to demonstrate their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against them. The plaintiff alleged in the bill of particulars that the MTA defendants violated Code of the Town of Babylon § 191–16, which imposes a duty on "[e]ach owner, lessor, lessee, tenant, occupant or other person in charge of any property within the Town" to keep the sidewalk "in front of or abutting the lot ... or building" in good repair (id. § 191–16[A]). The ordinance further provides that "[s]uch owner, lessor, lessee, tenant or occupant, and each of them," will be liable for any injuries arising from the failure to maintain such sidewalk (id. ). "It is a defendant's burden, when it is the party moving for summary judgment, to demonstrate affirmatively the merits of...