Weiner v. Metropolitan Transp. Authority

• Decision Date: 05 February 1981
• Citation: 80 A.D.2d 514,435 N.Y.S.2d 594
• Parties: Ann G. WEINER, Plaintiff-Appellant, v. METROPOLITAN TRANSPORTATION AUTHORITY et al., Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 594

435 N.Y.S.2d 594

80 A.D.2d 514

Ann G. WEINER, Plaintiff-Appellant, v. METROPOLITAN TRANSPORTATION AUTHORITY et al., Defendants-Respondents.

Supreme Court, Appellate Division, First Department.

Feb. 5, 1981.

D. Ross, New York City, for plaintiff-appellant.

L. Heisler, Brooklyn, for defendants-respondents.

Before KUPFERMAN, J. P., and BIRNS, SULLIVAN, MARKEWICH and SILVERMAN, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County, entered January 14, 1980, granting summary judgment dismissing the complaint, unanimously modified, on the law, without costs or disbursements, to reverse the award of summary judgment in favor of the Transit Authority and, except as thus modified, affirmed.

Special Term dismissed the complaint against the Transit Authority on the ground that absent a showing of the existence of a special duty to plaintiff, a passenger, it cannot be held liable for failure to furnish adequate police protection. It has long been the rule that when acting in its proprietary capacity, a municipal corporation's liability for tortious conduct is co-extensive with the liability of any other individual or corporate tort feasor. (See Riss v. City of New York, 22 N.Y.2d 579, 293 N.Y.S.2d 897, 240 N.E.2d 860; see, also, Bass v. City of New York, 38 A.D.2d 407, 330 N.Y.S.2d 569, aff'd. 32 N.Y.2d 894, 346 N.Y.S.2d 814.) The operation of a transit system is a proprietary, not a governmental function. (See Riss v. City of New York, supra, at 581, 293 N.Y.S.2d 897, 240 N.E.2d 860.) Thus, "the (Transit Authority), a railroad carrier, is under a duty to take reasonable precautions for the protection and the safety of its passengers." (Amoruso v. N.Y. City Transit Auth., 12 A.D.2d 11, 12, 207 N.Y.S.2d 855.) Here, the Transit Authority had actual knowledge of a number of similar incidents at the subway station where plaintiff was attacked, all occurring within the eight-month period prior to the incident in question. Nine of these incidents occurred, as here, when the token booth was closed. Thus, an issue of fact was presented as to the Transit Authority's negligence, and summary judgment should not have been granted. The complaint was, however, properly dismissed against the Metropolitan Transportation Authority whose responsibilities, as plaintiff concedes, do not include the operation, maintenance and control of any transit facility.