| Vikhor v City of New York |
| 2007 NY Slip Op 06670 [43 AD3d 914] |
| September 11, 2007 |
| Appellate Division, Second Department |
| Anatoliy Vikhor, Respondent, v City of New York,Respondent, and New York City Transit Authority et al., Appellants. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Kristin M. Helmers and JanetL. Zaleon of counsel), for defendant-respondent.
In an action to recover damages for personal injuries, the defendants New York City TransitAuthority and Metropolitan Transportation Authority appeal, as limited by their brief, from somuch of an order of the Supreme Court, Kings County (Hinds-Radix, J.), dated March 26, 2006,as denied those branches of their motion which were for summary judgment dismissing thecomplaint and all cross claims insofar as asserted against them.
Ordered that the order is modified, on the law, by deleting the provisions thereof denyingthose branches of the appellants' motion which were for summary judgment dismissing thecomplaint insofar as asserted against them, and the cross claim asserted by the defendant City ofNew York against the defendant New York City Transit Authority for contribution and againstthe defendant Metropolitan Transportation Authority for contribution and contractualindemnification, and substituting therefor provisions granting those branches of the motion; as somodified, the order is affirmed insofar as appealed from, without costs or disbursements.
The plaintiff alleged that on October 30, 2004, after exiting a subway station while walkingon the public sidewalk, he tripped and fell sustaining injuries due to a defective condition in theGravesend Neck Road sidewalk in Brooklyn located approximately 50 to 60 feet from East [*2]16th Street and six feet from the subway station exit. The plaintiff'scomplaint against the defendants New York City Transit Authority (hereinafter the NYCTA) andMetropolitan Transportation Authority (hereinafter the MTA) (hereinafter collectively theappellants) rested entirely upon the theory that the appellants were the owners of the subwaystation and the land abutting the sidewalk where the plaintiff fell and therefore were liable forfailing to maintain or repair the allegedly defective condition.
The appellants met their burden of establishing their prima facie entitlement to judgment as amatter of law dismissing the plaintiff's complaint insofar as asserted against them bydemonstrating that they did not own, maintain, operate, or control the public sidewalks or theabutting land and had no duty to exercise reasonable care with respect to the area where theplaintiff fell (see Administrative Code of City of New York § 7-210).
The appellants also made a prima facie showing of their entitlement to summary judgmentdismissing the City of New York's cross claim against them for contribution by establishing thatthey did not owe a duty of reasonable care to the City independent of the contractual obligationsof the NYCTA, or that the appellants owed a duty to the plaintiff, a breach of which contributedto his injuries (see Hites v Toys "R" Us,Inc., 33 AD3d 759, 760-761 [2006]).
As the MTA was not a party to a lease between the City and the NYCTA, the MTA may notbe held liable to the City for contractual indemnification.
The NYCTA, however, did not make a prima facie showing of entitlement to summaryjudgment dismissing the City's cross claim against it for contractual indemnification. Article VI,section 6.17 of the lease between the City and NYCTA does contain language requiring NYCTAto repair damage to sidewalks directly attributable to its elevated and subway operations andconstructions. Article VI, section 6.8 of the lease also requires the NYCTA to indemnify the Cityfor any damage resulting from any accident or occurrence arising out of or in connection withNYCTA's operations of the leased property. Here, the City alleges that NYCTA vehiclesdamaged the sidewalk by traversing it with machinery and equipment in order to reach thestaircase or the elevated tracks. NYCTA failed to make a prima facie showing that it did notcreate the condition complained of and thus, the burden never shifted to the City to produceevidentiary proof in admissible form sufficient to establish the existence of a triable issue of fact(see Bosman v Reckson FS Ltd.Partnership, 15 AD3d 517 [2005]). Crane, J.P., Goldstein, Dillon and Carni, JJ., concur.