Arteaga v City of New York
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on December 6, 2012
Tom, J.P., Mazzarelli, Moskowitz, Abdus-Salaam, Feinman, JJ.
Order, Supreme Court, New York County (Geoffrey D. Wright, J.), entered on or about September 16, 2011, which granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for leave to amend the complaint to include New York City Transit Authority (NYCTA) as a defendant and to deem her notice of claim on NYCTA timely served, unanimously affirmed, without costs.
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]).
Plaintiff's 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; General Municipal Law § 50-e; Pierson v City of New York, 56 NY2d 950 ; Singleton v City of New York, 55 AD3d 447 [1st Dept 2008]).
We have considered plaintiff's remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: DECEMBER 6, 2012
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