Kleinworm v. New York City Transit Authority

245 A.D.2d 487, 666 N.Y.S.2d 481, 1997 N.Y. App. Div. LEXIS 13243

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 22, 1997
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals (1) from an order of the Supreme Court, Kings County (Jackson, J.), dated November 14, 1996, which granted the defendant’s motion for summary judgment dismissing the complaint, and (2), as limited by her brief, from so much of an order of the same court, dated July 21, 1997, as, upon reargument, adhered to the original determination.

Ordered that the appeal from the order dated November 14, 1996, is dismissed, as that order was superseded by the order dated July 21, 1997, made upon reargument; and it is further,

Ordered that the order dated July 21, 1997, is affirmed insofar as appealed from; and it is further,

Ordered that the defendant is awarded one bill of costs.

The Supreme Court properly granted the motion of the defendant New York City Transit Authority for summary judgment, as the acts and/or omissions of which the plaintiff complains involved a governmental, rather than proprietary, function, and the plaintiff does not allege that she was owed a special duty by the defendant (see, Clinger v New York City Tr. Auth., 85 NY2d 957; Weiner v Metropolitan Transp. Auth., 55 NY2d 175; Rivera v New York City Tr. Auth., 184 AD2d 417; Farber v New York City Tr. Auth., 143 AD2d 112). Bracken, J. P., Pizzuto, Altman, Krausman and Lerner, JJ., concur.