Recitation as per CPLR §§ 2219(a) and/or 3212(b) of papers considered on review of this motion:

Upon the foregoing cited papers and after considering oral argument on October 23, 2024, pursuant to CPLR § 3212, Defendants New York City Transit Authority and Metropolitan Transportation Authority's ("MTA") (collectively "Transit") Motion for Summary Judgment and dismissing Plaintiff's complaint and any crossclaims (Motion Sequence # 4) is GRANTED and Defendant the City of New York's ("City") Motion for Summary Judgment and dismissing Plaintiff's complaint and any crossclaims (Motion Sequence # 5) is GRANTED.

Plaintiff commenced the instant action by filing a summons and complaint on August 2, 2019,^[FN1] seeking damages for personal injuries sustained in an alleged trip and fall incident on June 30, 2018, at or near Quentin Road between East 16th and East 17th Street, Brooklyn, New York.^[FN2] Plaintiff alleges she tripped and fell after stepping into a hole upon disembarking from a bus.^[FN3] The Transit Defendants filed an answer to Plaintiff's complaint on August 26, 2019 ^[FN4] and the City Defendant filed its answer on August 18, 2022.^[FN5]

The Transit Defendants moved for summary judgment motion on July 8, 2024,^[FN6] arguing it is entitled to judgment as a matter of law because the defect identified by Plaintiff was not the proximate cause of the accident, was not visible from the bus operator's vantage point, and Transit does not own, operate, or maintain the subject property where Plaintiff fell.^[FN7] Transit further contends that the Metropolitan Transportation Authority is an improper party to this action.^[FN8] Plaintiff opposed, arguing that Transit failed to establish prima facie entitlement to judgment by eliminating all triable issues of fact regarding whether Transit provided a safe location for Plaintiff to disembark.^[FN9]

The City Defendant filed its summary judgment on August 5, 2024,^[FN10] asserting it did not receive prior written notice of the defect and that there is no evidence that it created the alleged defect.^[FN11] Plaintiff opposed, arguing that issues of fact exist regarding whether the City had prior written notice.^[FN12]

Standard of Review

A party moving for summary judgment must establish prima facie entitlement to judgment as a matter of law by presenting sufficient evidence in admissible form to demonstrate the absence of any material factual disputes. See CPLR 3212 (b); Alvarez v Prospect Hospital, 68 NY2d 320, 324 (1986); Zuckerman v City of New York, 49 NY2d 557, 562 (1980); Korn v Korn, 135 AD3d 1023, 1024 (3d Dept. 2016). Failure to make this prima facie showing requires denial of the motion. See Alvarez, 68 NY2d at 324; Winegrad v New York University Medical Center, 64 NY2d 851, 853 (1985). If this showing is made, the burden shifts to the opposing party to produce evidence in admissible form raising a triable issue of fact. See CPLR 3212; Alvarez, 68 NY2d at 324; Zuckerman, 49 NY2d at 562. "[A]verments merely stating conclusions, of fact or of law, are insufficient to defeat summary judgment." Banco Popular North America v Victory Taxi Management, Inc., 1 NY3d 381, 383 (2004) (internal quotations omitted). The Court must view the totality of evidence presented in the light most favorable to the nonmoving party and accord that party the benefit of every favorable inference. See Fortune v Raritan Building Services Corp., 175 AD3d 469, 470 (2d Dept. 2019); Emigrant Bank v Drimmer, 171 AD3d 1132, 1134 (2d Dept. 2019).

Defendant Transit's Summary Judgment Motion (Motion Seq. # 4)

Transit's motion is granted as to dismissal of claims against the MTA, as "the Metropolitan Transportation Authority and its subsidiaries must be sued separately, and are not responsible for each other's torts." Mayayev v. Metro. Transp. Auth. Bus, 74 AD3d 910 (2d Dept. 2010). The New York City Transit Authority, not the MTA, oversees the subject bus, warranting dismissal of claims against the MTA.^[FN13]

A defendant may obtain summary judgment by demonstrating that the alleged dangerous condition was not the proximate cause of the accident. Malaspina v. Westchester Med. Ctr. Health Care Corp., 231 AD3d 941 (2d Dept. 2024). Proximate cause is generally a jury question but may be determined as a matter of law where only one conclusion is possible.^[FN14]

Furthermore, Transit is generally not responsible for maintaining bus stops, roadways, curbs, or sidewalks. Shaller v. City of New York, 41 AD3d 697 (2d Dept. 2007). However, "a common carrier owes a duty to an alighting passenger to stop at a place where the passenger may safely disembark and leave the area." Forminio v. City of New York, 68 AD3d 924 (2d Dept. 2009) (quoting Miller v. Fernan, 73 NY2d 844 [1988]). Moreover, whether a defendant breached its duty to a passenger depends on whether the bus driver "could have observed the dangerous condition from the driver's vantage point." Guzman v. New York City Transit Auth., 162 AD3d 749 (2d Dept. 2018). Transit submitted evidence, including video footage, bus operator testimony, expert reports, and Department of Transportation records, demonstrating the alleged defect was not the proximate cause of Plaintiff's accident.^[FN15]

The Transit Defendants met their prima facie burden establishing entitlement to [*3]judgment as a matter of law. They established the dangerous condition cited by Plaintiff was not a proximate cause of her accident.^[FN16] The photographic ^[FN17] and video ^[FN18] evidence clearly showed that Plaintiff was too far from the alleged hole for it to have caused her fall.^[FN19] See Quiñones v. 2074 White Plains Rd. Bldg., LLC, 180 AD3d 721 (2d Dept. 2020) (granting of summary judgment found appropriate where defendant's evidence, including video, clearly demonstrated that the alleged defect was not a proximate cause of the accident). Plaintiff's opposition failed to raise a triable issue of fact. Plaintiff's contention that the video evidence does not conclusively establish what caused Plaintiff's fall is unavailing. The video evidence clearly demonstrates that Plaintiff was too far from the location of the subject defect, identified by Plaintiff in photographic evidence,^[FN20] for the hole to have caused her fall as she disembarked from the bus. Quiñones at 722.

Additionally, the Transit Defendants demonstrated the alleged defect was not visible from the bus operator's vantage point.^[FN21] Guzman v. New York City Transit Auth., 162 AD3d 749 (2d Dept. 2018); Lovato v. New York City Transit Auth., 50 AD3d 969 (2d Dept. 2008). In opposition, Plaintiff failed to raise a triable issue of fact, including whether the bus driver was aware of or reasonably should have been aware of the defect in the roadway.^[FN22] Guzman at 750. Therefore, the Transit Defendants' motion for summary judgment is granted in its entirety.

Defendant City's Summary Judgment Motion (Motion Seq. # 5)

Pursuant to Administrative Code of the City of New York § 7-201(c)(2), the City may not be held liable absent prior written notice of a defect. Promenade Nursing Home, Inc. v. City of New York, 191 AD3d 1025 (2d Dept. 2021). Furthermore, Notice of one defect does not constitute notice of a separate defect. Fisch v. City of New York, 194 AD3d 786 (2d Dept. 2021) (citing Roldan v. City of New York, 36 AD3d 484 [1st Dept. 2007]). Exceptions to the prior written notice requirement includes where the municipality created the defect or enjoyed a special use of the subject area. Smith v. City of New York, 210 AD3d 53 (2d Dept. 2022). The City provided evidence, including DOT records, showing it did not have prior written notice of the alleged defect. Plaintiff failed to raise a triable issue, as nearby permits and inspections did [*4]not relate to the specific defect.^[FN23]

Here, the City met its prima facie burden establishing it did not have prior written notice of the alleged defect that caused Plaintiff's accident.^[FN24] Promenade Nursing Home, Inc., 191 AD3d at 1026. In opposition, Plaintiff failed to raise a triable issue of fact, as her argument that two permits issued, and inspections completed in the subject area for separate nearby conditions raises an issue of fact, is unpersuasive. See Fisch, 194 AD3d at 788. Since neither of the permits issued and inspections completed are related to the specific defect that is alleged to cause Plaintiff's accident, the Plaintiff has failed to raise an issue of fact as to the issue of whether the City obtained prior written notice of the subject defect. See Id. Therefore, the City's motion for summary judgment is granted in its entirety.

For the foregoing reasons, both summary judgment motions are granted. This constitutes the Decision and Order of the Court.