Witter v. City of New York

• Decision Date: 10 July 1995
• Parties: Vivian WITTER, Respondent, v. CITY OF NEW YORK, Defendant, New York City Transit Authority, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 279

629 N.Y.S.2d 279

217 A.D.2d 580

Vivian WITTER, Respondent, v. CITY OF NEW YORK, Defendant, New York City Transit Authority, et al., Appellants.

Supreme Court, Appellate Division, Second Department.

July 10, 1995.

Albert C. Cosenza, Brooklyn (Lawrence Heisler, of counsel), for appellants.

Steven Giano, Astoria (Paul G. Vesnaver, of counsel), for respondent.

Before BALLETTA, J.P., and THOMPSON, SANTUCCI, ALTMAN and HART, 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 (Greenstein, J.), dated April 6, 1994, which denied their motion pursuant to CPLR 3212 for summary judgment dismissing the complaint insofar as it is asserted against them or, pursuant to CPLR 3211, to dismiss the complaint insofar as it is asserted against them.

ORDERED that the order is affirmed, with costs.

The plaintiff was injured when she slipped and fell over a protruding metal bar in the area of a bus shelter situated at the intersection of East New York Avenue and Ralph Avenue in Brooklyn. The appellants correctly note that responsibility for the maintenance of the bus shelter 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 alleged that the appellants actually created the condition which caused her injury. In addition, the plaintiff alleged a special use or benefit of the area by the appellants. Therefore, since the complaint states a cause of action and there are questions of fact as to the plaintiff's allegations, the court properly denied the appellants' motion (see, Dursi v. New York City Transit Auth., 198 A.D.2d 470, 604 N.Y.S.2d 960).