Zuckerman v. City of New York

CourtNew York Court of Appeals
Writing for the CourtJONES; MEYER; COOKE, C. J., and JASEN, WACHTLER and FUCHSBERG, JJ., concur with JONES; MEYER, J., concurs in a separate opinion in which GABRIELLI
Citation404 N.E.2d 718,427 N.Y.S.2d 595,49 N.Y.2d 557
Parties, 404 N.E.2d 718 Muriel ZUCKERMAN, Plaintiff, v. CITY OF NEW YORK et al., Respondents, New York City Transit Authority, Appellant, et al., Defendant.
Decision Date01 April 1980

49 N.Y.2d 557

404 N.E.2d 718

427 N.Y.S.2d 595

Muriel Zuckerman, Plaintiff,

v.

City of New York et al., Respondents, New York City Transit Authority, Appellant, et al., Defendant

[NO NUMBER IN ORIGINAL]

Court of Appeals of New York

February 7, 1980, Argued

April 1, 1980, Decided

COUNSEL: Kenneth J. Chertoff, Helen R. Cassidy and John A. Murray for appellant.

Allen G. Schwartz, Corporation

JUDGES: Chief Judge Cooke and Judges Jasen, Wachtler and Fuchsberg concur with Judge Jones; Judge Meyer concurs in a separate opinion in which Judge Gabrielli concurs.

[49 N.Y.2d 560] [404 N.E.2d 718] [427 N.Y.S.2d 596] OPINION OF THE COURT

We repeat today a precept frequently stated -- where the moving party has demonstrated its entitlement to summary judgment, the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure so to do, and the submission of a hearsay affirmation by counsel alone does not satisfy this requirement.

On April 3, 1975 plaintiff (who is not a party to the present appeal) was injured when she fell at a curb near a bus stop located in the City of New York while she was attempting to board a bus. She thereafter instituted an action against the city as owner of the sidewalk, the New York City Transit Authority as operator of the bus, Royfost Co., Inc., the owner of the abutting property, and Harvey's Seafood House, Inc., the tenant in the abutting property. Each [404 N.E.2d 719] of the four defendants cross-claimed against the others, simply asking for indemnification or apportionment of liability under Dole v Dow Chem. Co. (30 NY2d 143).

Because the only basis for liability of the transit authority set out in the complaint was its alleged failure to have maintained the sidewalk and curb at the site of the accident in a safe condition and its negligence in permitting it to have become dangerous, the transit authority moved for summary judgment dismissing plaintiff's pleading as to it, asserting that it was under no legal obligation to maintain the sidewalk or curb. Agreeing with that contention, on June 19, 1977 Supreme Court granted the relief requested. No appeal from that disposition was taken by plaintiff or by any of the other defendants, each of whom had been served with notice of the transit authority's motion.

The transit authority then moved for summary judgment [49 N.Y.2d 561] dismissing all cross claims against it, renewing its disclaimer of obligation with regard to sidewalk or curb maintenance and pointing out that if, as had been determined on the previous motion for summary judgment, it owed no duty to plaintiff for the condition of the sidewalk, it could owe no obligation of contribution to the codefendants. The city opposed the motion on a ground subsequently abandoned after it had aligned itself with the position of Royfost, owner of the abutting [427 N.Y.S.2d 597] property. The latter opposed the motion to dismiss by an affirmation of its attorney stating that, although plaintiff's complaint alleging liability of the transit authority predicated on an obligation to maintain the sidewalk and curb had been dismissed, in a comptroller's hearing 1 plaintiff said that as she prepared to enter the bus her foot sank into mud at the curb and that this happened because the bus did not stop at the curb. The attorney concluded that the accident was therefore caused by the transit authority because its bus did not pull up to the curb and urged that a trial with respect to the cross claims should be had because "[upon] the trial of the action, which will doubtless entail a thorough examination of plaintiff and which may entail a thorough examination of other witnesses to the occurrence, the evidence will doubtless support the view that New York City Transit Authority through the negligent and reckless operation of its buses particularly with regard to boarding passengers, caused plaintiff to suffer the injuries of which she complains." Nothing accompanied the attorney's affirmation.

Supreme Court denied the transit authority's motion for summary judgment and the Appellate Division, by a divided court, affirmed, thereafter granting the transit authority leave to appeal to our court and certifying the question, "Was the order of the Supreme Court, as affirmed by this Court, properly made?" 2 In affirming the denial of the motion by which the transit authority sought disposition of all claims asserted against it arising out of plaintiff's accident...

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9793 practice notes
  • Rosado v. Bagnall, 2008 NY Slip Op 31971(U) (N.Y. Sup. Ct. 7/3/2008), 0005571/2006.
    • United States
    • United States State Supreme Court (New York)
    • July 3, 2008
    ...that summary judgment should be granted when there is no doubt as to the absence of triable issues. See, Zuckerman v. City of New York, 49 N.Y.2d 557, 562 Page 3 Rotuba Extruders, Inc. v. Ceppos, 46 N.Y.2d 223, 231(1978); Andre v. Pomeroy, 35 N.Y.2d 361, 364 (1974); Taft v. New York City Tr......
  • Montagnino v. Inamed Corp., INDEX NO. 13532/07
    • United States
    • United States State Supreme Court (New York)
    • May 11, 2012
    ...sufficient to establish the existence of material issues of a fact which require a trial of the action. (Zuckerman v. City of New York, 49 N. Y.2d 557 (1980)).Page 5 In opposition, plaintiff fails to submit any affidavit or affirmation by a medical expert establishing that defendant Shons d......
  • Amigon v. Maxwin USA, Inc., 2008 NY Slip Op 32035(U) (N.Y. Sup. Ct. 7/14/2008), 0007858/2006
    • United States
    • United States State Supreme Court (New York)
    • July 14, 2008
    ...tender evidentiary proof in admissible form eliminating any material issues of fact from the case. See Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980). If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues......
  • Weinberg v. Picker, Index No.: 510746/2015
    • United States
    • United States State Supreme Court (New York)
    • April 24, 2017
    ...proof in admissible form to establish material issues of fact, which require a trial of the action. Zuckerman v. City of New York, 49 N.Y.2d 557 (1980); Alvarez v. Prospect Hosp., 68 N.Y.2d 320 (1986). However, where the moving party fails to make a prima facie showing, the motion must be d......
  • Request a trial to view additional results
9759 cases
  • Rosado v. Bagnall, 2008 NY Slip Op 31971(U) (N.Y. Sup. Ct. 7/3/2008), 0005571/2006.
    • United States
    • United States State Supreme Court (New York)
    • July 3, 2008
    ...that summary judgment should be granted when there is no doubt as to the absence of triable issues. See, Zuckerman v. City of New York, 49 N.Y.2d 557, 562 Page 3 Rotuba Extruders, Inc. v. Ceppos, 46 N.Y.2d 223, 231(1978); Andre v. Pomeroy, 35 N.Y.2d 361, 364 (1974); Taft v. New York City Tr......
  • Montagnino v. Inamed Corp., INDEX NO. 13532/07
    • United States
    • United States State Supreme Court (New York)
    • May 11, 2012
    ...sufficient to establish the existence of material issues of a fact which require a trial of the action. (Zuckerman v. City of New York, 49 N. Y.2d 557 (1980)).Page 5 In opposition, plaintiff fails to submit any affidavit or affirmation by a medical expert establishing that defendant Shons d......
  • Amigon v. Maxwin USA, Inc., 2008 NY Slip Op 32035(U) (N.Y. Sup. Ct. 7/14/2008), 0007858/2006
    • United States
    • United States State Supreme Court (New York)
    • July 14, 2008
    ...tender evidentiary proof in admissible form eliminating any material issues of fact from the case. See Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980). If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues......
  • Weinberg v. Picker, Index No.: 510746/2015
    • United States
    • United States State Supreme Court (New York)
    • April 24, 2017
    ...proof in admissible form to establish material issues of fact, which require a trial of the action. Zuckerman v. City of New York, 49 N.Y.2d 557 (1980); Alvarez v. Prospect Hosp., 68 N.Y.2d 320 (1986). However, where the moving party fails to make a prima facie showing, the motion must be d......
  • Request a trial to view additional results

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