Opinion
2013-01-30
Ann TURTON, et al., appellants, v. NEW YORK CITY TRANSIT AUTHORITY, respondent, et al., defendant.
G. Wesley Simpson, P.C., Brooklyn, N.Y., for appellants. Wallace D. Gossett, Brooklyn, N.Y. (Lawrence Heisler of counsel), for respondent.
G. Wesley Simpson, P.C., Brooklyn, N.Y., for appellants. Wallace D. Gossett, Brooklyn, N.Y. (Lawrence Heisler of counsel), for respondent.
MARK C. DILLON, J.P., RUTH C. BALKIN, CHERYL E. CHAMBERS, and ROBERT J. MILLER, JJ.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (Gavrin, J.), entered April 12, 2011, which granted the motion of the defendant New York City Transit Authority for summary judgment dismissing the complaint insofar as asserted against it.
ORDERED that the order is affirmed, with costs.
On January 26, 2006, the injured plaintiff was assaulted by the defendant Gang M. Kim in front of a token booth at the Main Street subway station in Flushing, Queens. The injured plaintiff and her husband, suing derivatively, commenced this action to recover damages for personal injuries against the New York City Transit Authority (hereinafter the NYCTA) and Kim. The Supreme Court granted the NYCTA's motion for summary judgment dismissing the complaint insofar as asserted against it.
Generally, “[t]he New York City Transit Authority owes no duty to protect a person on its premises from assault by a third person, absent facts establishing a special relationship between [the NYCTA] and the person assaulted” (Weiner v. Metropolitan Transp. Auth., 55 N.Y.2d 175, 178, 448 N.Y.S.2d 141, 433 N.E.2d 124;see Frazier v. Manhattan & Bronx Surface Tr. Operating Auth., 75 A.D.3d 619, 620, 905 N.Y.S.2d 657;Banks v. New York City Dept. of Educ., 70 A.D.3d 988, 990, 895 N.Y.S.2d 512;Rios v. New York City Tr. Auth., 251 A.D.2d 484, 673 N.Y.S.2d 1020). In support of its motion, the NYCTA demonstrated that it did not have a special relationship with the injured plaintiff, thus establishing its prima facie entitlement to judgment as a matter of law ( see Weiner v. Metropolitan Transp. Auth., 55 N.Y.2d at 178, 448 N.Y.S.2d 141, 433 N.E.2d 124;Banks v. New York City Dept. of Educ., 70 A.D.3d at 990, 895 N.Y.S.2d 512;Rios v. New York City Tr. Auth., 251 A.D.2d at 484, 673 N.Y.S.2d 1020;see also Cuffy v. City of New York, 69 N.Y.2d 255, 260, 513 N.Y.S.2d 372, 505 N.E.2d 937). In opposition, the plaintiffs failed to raise a triable issue of fact as to whether a special relationship existed between the NYCTA and the injured plaintiff or as to whether the NYCTA employee who observed Kim assaulting the injured plaintiff failed to summon emergency assistance in a timely manner sufficient to bring her claim within an exception to the special relationship requirement ( see Crosland v. New York City Tr. Auth., 68 N.Y.2d 165, 170, 506 N.Y.S.2d 670, 498 N.E.2d 143;Miller v. City of New York, 277 A.D.2d 363, 717 N.Y.S.2d 198;Rios v. New York City Tr. Auth., 251 A.D.2d at 484, 673 N.Y.S.2d 1020;Tidd v. New York City Tr. Auth., 218 A.D.2d 694, 630 N.Y.S.2d 940;cf. Murphy v. New York City Tr. Auth., 74 A.D.3d 1158, 904 N.Y.S.2d 169;Bastien v. New York City Tr. Auth., 67 A.D.3d 716, 888 N.Y.S.2d 210). Accordingly, the Supreme Court properly granted the NYCTA's motion for summary judgment dismissing the complaint insofar as asserted against it.