Opinion
2017-6 K C
07-12-2019
VERASO MEDICAL SUPPLY CORP., as Assignee of Duran, Maritnez Sori, Respondent, v. NY CITY TRANSIT AUTHORITY, Appellant.
Jones Jones, LLP (Agnes Neiger of counsel), for appellant. Law Office of John Gallagher, PLLC, for respondent (no brief filed).
Jones Jones, LLP (Agnes Neiger of counsel), for appellant.
Law Office of John Gallagher, PLLC, for respondent (no brief filed).
PRESENT: MICHAEL L. PESCE, P.J., MICHELLE WESTON, THOMAS P. ALIOTTA, JJ.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant's cross motion for summary judgment dismissing the complaint is granted.
In support of its cross motion for summary judgment dismissing the complaint, defendant New York City Transit Authority (NYCTA) submitted an affidavit from its claims examiner, who stated that it is defendant's business practice to maintain a log of all people injured or involved in a motor vehicle accident involving an NYCTA vehicle. The NF-2 submitted by plaintiff's assignor stated that she was injured while a passenger on an MTA bus and it set forth the time and location when she was allegedly injured. Defendant's claims examiner stated that he had searched defendant's records and found that there was no record indicating that plaintiff's assignor had been injured as a passenger, or otherwise, by an NYCTA vehicle on the date of the alleged incident or even that she was at the scene of an incident involving an NYCTA vehicle on the date in question. As a result, defendant established its prima facie entitlement to summary judgment. Consequently, to defeat defendant's cross motion for summary judgment dismissing the complaint, plaintiff had to set forth facts sufficient to demonstrate a triable issue of fact (see Friends of Animals, Inc. v. Associated Fur Mfrs. , 46 NY2d 1065 [1979] ). Since plaintiff failed to do so, defendant's cross motion for summary judgment dismissing the complaint should have been granted (see Zuckerman v. City of New York , 49 NY2d 557 [1980] ; Jesa Med. Supply, Inc. v. NYC Tr. Auth. , 38 Misc 3d 138[A], 2013 NY Slip Op 50188[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013] ).
Accordingly, the order, insofar as appealed from, is reversed and defendant's cross motion for summary judgment dismissing the complaint is granted.
PESCE, P.J., WESTON and ALIOTTA, JJ., concur.