| Oppenheim v Village of Great Neck Plaza, Inc. |
| 2007 NY Slip Op 09565 [46 AD3d 527] |
| December 4, 2007 |
| Appellate Division, Second Department |
| Judy Oppenheim, Appellant, v Village of Great NeckPlaza, Inc., et al., Defendants, and Metropolitan Transportation Authority et al.,Respondents. |
—[*1] Lewis Johs Avallone Aviles, LLP, Riverhead, N.Y. (Michael G. Kruzynski of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by herbrief, from so much of an order of the Supreme Court, Nassau County (Galasso, J.), enteredAugust 8, 2006, as granted those branches of the cross motion of the defendants MetropolitanTransportation Authority and Long Island Railroad which were for summary judgmentdismissing the complaint insofar as asserted against them.
Ordered that the order is modified, on the law, by deleting the provision thereof granting thatbranch of the cross motion of the defendants Metropolitan Transportation Authority and LongIsland Railroad which was for summary judgment dismissing the complaint insofar as assertedagainst the defendant Long Island Railroad, and substituting therefor a provision denying thatbranch of the cross motion; as so modified, the order is affirmed insofar as appealed from,without costs or disbursements.
On October 27, 2004 the plaintiff, who was walking home from a train station, was crossinga bridge above the railroad tracks. As she was walking on a sidewalk on the bridge, which ranalongside a roadway, her toe got stuck in an "expansion joint." As a result, she fell forward ontothe ground.
The plaintiff then commenced the instant action against the defendant Metropolitan [*2]Transportation Authority (hereinafter the MTA), the defendantLong Island Railroad (hereinafter the LIRR), and others, seeking to recover damages for injuriesthat she allegedly sustained as a result of her fall. In the order appealed from, the Supreme Court,among other things, granted those branches of the cross motion of the MTA and the LIRR whichwere for summary judgment dismissing the complaint insofar as asserted against them. The courterred, however, in awarding summary judgment dismissing the complaint insofar as assertedagainst the LIRR.
Initially, although it was the second time that the MTA and the LIRR moved for summaryjudgment, and although there is a "general proscription against successive summary judgmentmotions" (Lapadula v Sang Shing Kwok, 304 AD2d 798 [2003]), under thecircumstances, the Supreme Court properly entertained the cross motion of the MTA and theLIRR (see Staib v City of New York, 289 AD2d 560, 561 [2001]). Nevertheless, sincethe LIRR failed to make a prima facie showing of its entitlement to judgment as a matter of law,the court should not have awarded the LIRR summary judgment (see Alvarez v ProspectHosp., 68 NY2d 320, 324 [1986]).
Railroad Law § 93 provides that "[w]hen a highway crosses a railroad by an overheadbridge, the framework of the bridge and its abutments shall be maintained and kept in repair bythe railroad corporation." Here, however, while the LIRR contended that it had no duty tomaintain the expansion joint, and thus, that it could not be held liable for the plaintiff's allegedinjuries, the LIRR failed to provide evidence sufficient to establish that the expansion joint wasnot part of "the framework of the bridge and its abutments" (Railroad Law § 93; cf.Koles v Penn Cent. Co., 55 AD2d 877, 878 [1977]). Furthermore, triable issues of fact exist,inter alia, as to whether the expansion joint constituted a defective condition.
The plaintiff's remaining contentions are either not properly before this Court or withoutmerit. Miller, J.P., Ritter, Skelos and Covello, JJ., concur.