Whitman v. City of New York

2024 NY Slip Op 30562(U)

• Court: New York Supreme Court, New York County
• Decided: February 16, 2024
• Status: Unpublished

Opinion

Whitman v City of New York 2024 NY Slip Op 30562(U) February 16, 2024 Supreme Court, New York County Docket Number: Index No. 150362/2020 Judge: Nicholas W. Moyne Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 150362/2020 NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 02/22/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. NICHOLAS W. MOYNE PART 52 Justice --~----------------X INDEX NO. 150362/2020 JACQUELINE WHITMAN, 07/18/2023, MOTION DATE 07/18/2023 Plaintiff,

-v- MOTION SEQ. NO. - -003 -- 003 -- THE CITY OF NEW YORK, THE LONG ISLAND RAILROAD, METROPOLITAN TRANSPORTATION DECISION + ORDER ON AUTHORITY, METRO-NORTH RAILROAD COMPANY MOTION Defendant.

-------------------X The following e-filed documents, listed by NYSCEF document number (Motion 003) 33, 34, 35, 36, 37, 38,39,40,41,42,43,44,45,46,47,48,49,50,51 were read on this motion to/for DISMISS

The following e-filed documents, listed by NYSCEF document number (Motion 003) 33, 34, 35, 36, 37, 38,39,40,41,42,43,44,45,46,47,48,49,50,51 were read on this motion to/for JUDGMENT-SUMMARY Upon the foregoing documents, it is

Defendant The City of New York ("City") moves to dismiss the complaint and cross-

claims against if for failure to state a claim pursuant to CPLR § 321 l(a)(7). The plaintiff

. opposes the motion:.

Plaintiff contends that she was injured on October 16, 2018, when she tripped and fell

due to a hazardous condition in Pen Station (the premises). Specifically, she alleges that she

tripped on the last step of the staircase leading to Track 20 of the Long Island Railroad. The

City's motion to dismiss is based upon the affidavits of David Schloss, a Senior Title Examiner

in the New York City Law Department, who states that he conducted a title search for the

premises, and that, on the date of the accident, the record title holder was National Railroad

Passenger Corporation. A copy of the deed is attached to Mr. Schloss' affidavit. The City's

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motion is also supported by the affidavit of Callista Nazaire, an Administrative City Planner for

the New York City Department of Citywide Administrative Services ("DCAS"). She performed

a search of City Records and found no records indicating that the premises was "owned,

occupied, maintained, or controlled by the City of New York, either directly as owner or by

means of a license or lease in effect on October 16, 2018." "Liability for a dangerous or

defective condition on real property must be predicated upon ownership, occupancy, control, or

special use of that property" (Karpovich v City of New York, 162 AD3d 996, 997 [2d Dept

2018]). A deed conclusively establishes that the City did not own the premises. The affidavit of

Callista Nazaire establishes that the City did not occupy, control, or make special use of the

premises. Accordingly, the City has made a prima facie showing of entitlement to dismissal of

the complaint against it. Plaintiffs contention that dismissal is premature because discovery has

not been completed, and facts essential to justify opposition may exist but cannot be stated, is

unwarranted because plaintiff does not make a sufficient showing that facts essential to justify

opposition to the motion could be yielded during discovery (see Karpovich v City ofNew York,

162 AD3d 996,998 [2d Dept 2018]; see also Cioe v Petrocelli Elec. Co., Inc., 33 AD3d 377,378

[1st Dept 2006] ["claimed need for discovery without some evidentiary basis suggesting that

discovery may lead to relevant evidence is insufficient to avoid the grant of summary

judgment"]). Therefore, it is hereby

ORDERED that the motion of defendant The City of New York to dismiss the complaint

herein is granted and the complaint is dismissed in its entirety as against said defendant, with costs

and disbursements to said defendant as taxed by the Clerk of the Court, and the Clerk is directed

to enter judgment accordingly in favor of said defendant; and it is further

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ORDERED that the action is severed and continued against the remaining defendants; and

it is further

ORDERED that the caption be amended to reflect the dismissal and that all future papers

filed with the court bear the amended caption; and it is further

ORDERED that the caption shall hereafter read:

---------------------------------------------------------------------------------X .JACQUELINE WHITMAN, Plaintiff, -v- THE LONG ISLAND RAILROAD, METROPOLITAN TRANSPORTATION AUTHORITY, METRO-NORTH RAILROAD COMPANY Defendants. ----------------------------------------------·----------------------------------X and it is further

ORDERED that as the City of New York is no longer a party to the action, and no

remaining party is represented by Corporation Counsel (the New York City Law Department), this

matter remitted to the General Clerk's Office for reassignment to Part 21, the Transit Part; and it

is further

ORDERED that counsel for the moving party shall serve a copy of this order with notice

of entry upon the Clerk of the Court and the Clerk of the General Clerk's Office, who are directed

to mark the court's records to reflect the change in the caption herein; and it is further

ORDERED that such service upon the Clerk of the Court and the Clerk of the General

Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on

Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-

Filing" page on the court's website).

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This constitutes the decision and order of the court.

2/16/2024 DATE NICHOLAS W. MOYNE, J.S.C. CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

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