Torres v. New York City Transit Authority

• Decision Date: 09 December 1999
• Citation: 699 N.Y.S.2d 387
• Parties: Emelinde TORRES, etc., Plaintiff-Appellant, v. NEW YORK CITY TRANSIT AUTHORITY, Defendant-Respondent, The City of New York, Defendant.
• Court: New York Supreme Court — Appellate Division

Page 387

699 N.Y.S.2d 387

Emelinde TORRES, etc., Plaintiff-Appellant, v. NEW YORK CITY TRANSIT AUTHORITY, Defendant-Respondent, The City of New York, Defendant.

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

Dec. 9, 1999.

Harold Gordon, for Plaintiff-Appellant.

Lawrence Heisler, for Defendant-Respondent.

ROSENBERGER, J.P., TOM, MAZZARELLI, LERNER and RUBIN, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, Bronx County (Douglas McKeon, J.), entered August 31, 1998, which, in this wrongful death action, granted the motion of defendant New York City Transit Authority for summary judgment dismissing plaintiff's complaint, unanimously affirmed, without costs.

Under the circumstances presented, in which defendant's summary judgment motion, although filed five days late, possessed clear merit, and in which plaintiff continued to conduct discovery subsequent to the filing of her note of issue, the motion court properly entertained the motion (see, Rossi v. Arnot Ogden Med. Ctr., 252 A.D.2d 778, 779-780, 676 N.Y.S.2d 699; see also, Acosta v. 888 7th Ave. Assocs., 248 A.D.2d 284, 670 N.Y.S.2d 79). Significantly, plaintiff took nine years to serve a bill of particulars and another year and a half to commence depositions. Furthermore, plaintiff proffered no evidence in admissible form to controvert movant's prima facie showing that decedent committed suicide and that defendant's employees did not contribute to the happening of the event.

We have considered plaintiff's remaining contentions and find them unavailing.