Arteaga v. City of New York

Appellate Division of the Supreme Court of New York

Arteaga v. City of New York

101 A.D.3d 454, 956 N.Y.2d 9

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 6, 2012

StatusPublished

This text of 101 A.D.3d 454 (Arteaga v. City of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Arteaga v. City of New York, 101 A.D.3d 454, 956 N.Y.2d 9 (N.Y. Ct. App. 2012).

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Opinion

Plaintiff served a timely notice of claim on defendant City alleging that she was injured when she slipped and fell on a platform in a subway station. The motion court correctly granted defendant’s motion since it demonstrated that the subway station is leased to the NYCTA, and it is an out-of-possession landlord and not liable for negligence on the part of NYCTA (see McGuire v City of New York, 211 AD2d 428 [1st Dept 1995]). There is no prohibition against moving for summary judgment based on an unpleaded defense where the opposing party is not taken by surprise and does not suffer prejudice as a result (see Rosario v City of New York, 261 AD2d 380 [2d Dept 1999]). Nor is defendant equitably estopped from relying on the defense (see Neil v City of New York, 95 AD3d 608, 609 [1st Dept 2012]).

Plaintiffs cross motion seeking relief as to nonparty NYCTA was properly denied since plaintiff never served a notice of claim on the NYCTA and the statute of limitations of one year and 90 days has expired (see Public Authorities Law § 1212 [2]; General Municipal Law § 50-e [5]; Pierson v City of New York, 56 NY2d 950 [1982]; Singleton v City of New York, 55 AD3d 447 [1st Dept 2008]).

[455]*455We have considered plaintiffs remaining arguments and find them unavailing. Concur — Tom, J.P., Mazzarelli, Moskowitz, Abdus-Salaam and Feinman, JJ.

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Plaintiff served a timely notice of claim on defendant City alleging that she was injured when she slipped and fell on a platform in a subway station. The motion court correctly granted defendant’s motion since it demonstrated that the subway station is leased to the NYCTA, and it is an out-of-possession landlord and not liable for negligence on the part of NYCTA (see McGuire v City of New York, 211 AD2d 428 [1st Dept 1995]). There is no prohibition against moving for summary judgment based on an unpleaded defense where the opposing party is not taken by surprise and does not suffer prejudice as a result (see Rosario v City of New York, 261 AD2d 380 [2d Dept 1999]). Nor is defendant equitably estopped from relying on the defense (see Neil v City of New York, 95 AD3d 608, 609 [1st Dept 2012]).

Plaintiffs cross motion seeking relief as to nonparty NYCTA was properly denied since plaintiff never served a notice of claim on the NYCTA and the statute of limitations of one year and 90 days has expired (see Public Authorities Law § 1212 [2]; General Municipal Law § 50-e [5]; Pierson v City of New York, 56 NY2d 950 [1982]; Singleton v City of New York, 55 AD3d 447 [1st Dept 2008]).

[455]*455We have considered plaintiffs remaining arguments and find them unavailing. Concur — Tom, J.P., Mazzarelli, Moskowitz, Abdus-Salaam and Feinman, JJ.

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Bluebook (online)

101 A.D.3d 454, 956 N.Y.2d 9, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arteaga-v-city-of-new-york-nyappdiv-2012.

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