Tikotzky v. City of NY

• Decision Date: 27 August 2001
• Citation: 286 AD2d 493,729 N.Y.S.2d 525
• Parties: (A.D. 2 Dept. 2001) Shifra Tikotzky, et al., plaintiffs-respondents, v. City of New York, defendant-respondent, New York City Transit Authority, appellant. 2000-04750 : SECOND JUDICIAL DEPARTMENT
• Court: New York Supreme Court — Appellate Division

Page 525

729 N.Y.S.2d 525 (A.D. 2 Dept. 2001)

Shifra Tikotzky, et al., plaintiffs-respondents, v. City of New York, defendant-respondent, New York City Transit Authority, appellant.

2000-04750

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT

Argued June 11, 2001

August 27, 2001

Wallace D. Gossett, Brooklyn, N.Y. (Lawrence Heisler of counsel), for appellant.

Bruce S. Reznick, P.C. (Pollack, Pollack, Isaac & DeCicco, New York, N.Y. [Brian J. Isaac] of counsel), for plaintiffs-respondents.

LAWRENCE J. BRACKEN, P.J., WILLIAM D. FRIEDMANN, ANITA R. FLORIO, SANDRA J. FEUERSTEIN, JJ.

In an action to recover damages for personal injuries, etc., the defendant New York City Transit Authority appeals from so much of an order of the Supreme Court, Kings County (Bruno, J.), dated March 14, 2000, as denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

This action involves a one-car motor vehicle accident which occurred on May 16, 1998, on McDonald Avenue in Brooklyn, approximately 70 to 80 feet north of the intersection with Avenue M. The plaintiff Wolf Tikotzky and several members of his family were riding in a car traveling on McDonald Avenue when the wheels of the vehicle struck exposed metal trolley tracks. The tires of the car lost traction and the car slid into a concrete and steel support pillar for the elevated subway tracks. The plaintiffs commenced this action against the City of New York and the New York City Transit Authority (hereinafter the TA), alleging, in part, that the TA was responsible for maintaining the tracks present in the roadbed of McDonald Avenue, and that its negligence in maintaining them was the cause of the accident. The TA moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, arguing that it did not own, operate, or maintain the subject tracks. The TA argued that the tracks had been owned, operated, and maintained by an entirely separate corporate entity, the South Brooklyn Railway Co. (hereinafter SBR). The Supreme Court denied the motion finding, in essence, that the documentary evidence showed that the TA had assumed responsibility for the tracks.

Prior to 1940 the subject tracks were owned and operated by SBR. In June 1940 the City agreed to unify transit operations under the City Board of Transportation, purchasing various rail lines, including the Brooklyn Manhattan Transit Co. of which SBR was a subsidiary. Thirteen years later, in June 1953, the TA was created as a public benefit corporation to which the City leased transit facilities.

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