Opinion
2013-02-19
Janice WEITERS, Plaintiff–Respondent, v. The CITY OF NEW YORK, et al., Defendants, MTA Bus Company, Defendant–Appellant.
Barry, McTiernan & Moore, New York (David H. Schultz of counsel), for appellant. Scott Baron & Associates, P.C., Howard Beach (John Burnett of counsel), for respondent.
Barry, McTiernan & Moore, New York (David H. Schultz of counsel), for appellant. Scott Baron & Associates, P.C., Howard Beach (John Burnett of counsel), for respondent.
Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered October 19, 2011, which denied defendant MTA Bus Company's (MTA) motion for summary judgment dismissing the complaint and all cross claims as against it, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.
Plaintiff was injured when she tripped and fell on an allegedly defective roadway condition in the vicinity of a bus stop. Plaintiff asserts that MTA created the condition by its operation of buses on the subject roadway. MTA established its entitlement to judgment as a matter of law by showing that it was not responsible for maintenance of the public roadways and that its use of the roadways does not constitute a ‘special use’ ( see Cabrera v. City of New York, 45 A.D.3d 455, 456, 846 N.Y.S.2d 152 [1st Dept. 2007];Towbin v. City of New York, 309 A.D.2d 505, 765 N.Y.S.2d 242 [1st Dept. 2003] ).
No triable issue of fact was raised in opposition as to whether MTA owed plaintiff any duty with regard to the roadway. Nor was the motion premature as plaintiff and defendant Riverbay Corporation failed to identify any outstanding discovery that was needed to oppose the motion ( see e.g. Billy v. Consolidated Mach. Tool Corp., 51 N.Y.2d 152, 163–164, 432 N.Y.S.2d 879, 412 N.E.2d 934 [1980] ).