[*1]
Apollon v City of New York
2014 NY Slip Op 51559(U) [45 Misc 3d 1213(A)]
Decided on October 30, 2014
Supreme Court, Queens County
Flug, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on October 30, 2014
Supreme Court, Queens County


Marie Apollon, Plaintiff(s),

against

The City of New York, LONG ISLAND RAILROAD AND METROPOLITAN TRANSIT AUTHORITY, Defendant(s).




10008/2012



Barry Goldstein, Esq



Attorney for Plaintiff



Marie Apollon



Richard L. Gans,, Esq.



Asst. Corporation Counsel



Attorney for Defendant



City of New York



LIRR Law Department


Phyllis Orlikoff Flug, J.

Upon the foregoing papers it is ordered that this motion and these cross motions are determined as follows:



Plaintiff commenced this action to recover for personal injuries allegedly sustained on February 11, 2011 when she fell due to an ice condition on the sidewalk under the Long Island Railroad trestle on 195th Street between 99th Avenue and Sagamore Avenue in Queens, New York. According to her deposition testimony, plaintiff could not see the ice before her accident, and only after her fall did she notice that the entire sidewalk was covered with black ice.



The court previously granted LIRR and MTA's motion to dismiss the complaint against them as untimely under New York Public Authorities Law § 12762(2). The court also granted the City's cross motion to convert its cross-claims against LIRR and MTA into a third-party action.



The moving party on a motion for summary judgment has the burden of demonstrating "a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 852 [1985]). Once the movant has made this showing, the burden of proof shifts to the party opposing the motion to produce evidentiary proof in admissible form to establish that material issues of fact exist which require a trial (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). The City satisfies its burden of demonstrating, prima facie, that it was not an owner and did not have any duty under the "Sidewalk Law" (Administrative Code of City of NY § 7-210) by submitting New York City Department of Finance records reflecting that third-party defendants LIRR and MTA owned the parcel of property adjacent to the sidewalk on which plaintiff allegedly fell (see Sanders v Aqua Chlor Enters., Inc., 90 AD3d 521 [2011]; Rodriguez v City of New York, 70 AD3d 450 [2010]).



In opposition, plaintiff fails to raise a triable issue of fact regarding the ownership of the property (see Camacho v City of New York, 96 AD3d 795 [2012]). Plaintiff contends that the City owes her a duty under Railroad Law § 93, but a "prior general statute must yield to a later more specific statute" (Dandomar Co., LLC v Town of Pleasant Valley Town Bd., 86 AD3d 83, 92 [2011]). In that regard, the Sidewalk Law, enacted in 2003, governs specific pedestrian areas and overrides that portion of Railroad Law § 93, originally enacted in 1890, which [*2]relates generally to roadways under railroad overpasses.



The court declines to grant the relief sought by plaintiff in her cross motion insofar as it was incumbent upon her to ascertain the proper defendants to be named in the action and bring suit in timely manner. Even if plaintiff had raised this argument at the time LIRR and MTA moved to dismiss, she fails to demonstrate that LIRR and MTA induced her to refrain from timely filing this action by fraud, deception or misrepresentation (see Zumpano v Quinn, 6 NY3d 666 [2006]); Evan S. v Joseph R., 7 AD3d 668 [2010]).



Accordingly, the City's motion for summary judgment and LIRR and MTA's cross motion for summary judgment are granted. Plaintiff's cross motion to reinstate the direct action against LIRR and MTA is denied.



Dated: October 30, 2014

J.S.C.