Weiters v City of New York
Decided on February 19, 2013
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.
Tom, J.P., Moskowitz, Richter, Manzanet-Daniels, Clark, JJ.
Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered October 19, 2011, which denied defendant MTA Bus Company's (MTA) motion for summary judgment dismissing the complaint and all cross claims as against it, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.
Plaintiff was injured when she tripped and fell on an allegedly defective roadway condition in the vicinity of a bus stop. Plaintiff asserts that MTA created the condition by its operation of buses on the subject roadway. MTA established its entitlement to judgment as a matter of law by showing that it was not responsible for maintenance of the public roadways and that its use of the roadways does not constitute a special use' (see Cabrera v City of New York, 45 AD3d 455, 456 [1st Dept 2007]; Towbin v City of New York, 309 AD2d 505 [1st Dept 2003]).
No triable issue of fact was raised in opposition as to whether MTA owed plaintiff any duty with regard to the roadway. Nor was the motion premature as plaintiff and defendant Riverbay Corporation failed to identify any outstanding discovery that was needed to oppose the motion (see e.g. Billy v Consolidated Mach. Tool Corp., 51 NY2d 152, 163-164 ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 19, 2013
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