MINAHAN v. NEW YORK CITY TRANSIT AUTHORITY (2024)

Order, Supreme Court, New York County (Denise M. Dominguez, J.), entered September 11, 2023, which denied plaintiff's motion for partial summary judgment and granted defendants' cross-motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff alleges that she was injured when she tripped over a crack in the sidewalk within 12 inches of a sidewalk grate.  In support of her motion for summary judgment, plaintiff relied largely on a notice to admit to establish defendants' ownership of the sidewalk grate.  Under the circumstances, the court providently exercised its discretion in determining that defendants were not bound by a deemed admission resulting from plaintiff's service of the notice to admit (see Torres v. McCormick, 35 A.D.3d 443, 444, 826 N.Y.S.2d 364 [2d Dept. 2006]).  The notice to admit was served by email at the onset of the pandemic shutdown in March 2020, and was not raised by plaintiff as an outstanding discovery item at a subsequent preliminary conference.  Thus, it appeared that defendants' failure to respond was inadvertent, particularly since they had not admitted the allegation of ownership in their answer (see Fetahu v. New Jersey Tr. Corp., 167 A.D.3d 514, 515, 91 N.Y.S.3d 11 [1st Dept. 2018]).  Moreover, the court took judicial notice that, after defendants produced a witness who testified that defendants did not own the grate, which appeared to be a utility grate for the building abutting the sidewalk, plaintiff commenced a suit against the abutting owner and a utility after deposing that witness.  Thus, plaintiff was not prejudiced by defendants' failure to respond (compare Hernandez v. City of New York, 95 A.D.3d 793, 794, 945 N.Y.S.2d 292 [1st Dept. 2012]).  Plaintiff submitted no other evidence in support of her claim that the grate was owned by defendants and thus did not meet her burden on her motion for summary judgment.

In support of their motion for summary judgment, defendants established prima facie that they did not own the sidewalk grate on which plaintiff tripped by relying on the testimony of their witness, a New York City Transit Authority project manager, who testified, based on his personal investigation of the sidewalk and review of a 1938 Plan of Sidewalk Grating, that the grate was not a subway grate that may have been owned or leased to defendants.  Thus, defendants were not responsible for maintenance of the 12–inch perimeter around the grate (34 RCNY 2–07[b][1];  cf.  Garrett v. City of New York, 222 A.D.3d 554, 556, 202 N.Y.S.3d 86 [1st Dept. 2023]).  In opposition, plaintiff failed to raise a triable issue of fact.

We have considered plaintiff's remaining arguments and find them unavailing.