DUKU v. NEW YORK CITY TRANSIT AUTHORITY (2006)

In an action to recover damages for personal injuries, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Bruno, J.), dated May 9, 2002, as denied that branch of its motion which was for summary judgment dismissing the complaint.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, that branch of the defendant's motion which was for summary judgment is granted, and the complaint is dismissed.

The defendant established its prima facie entitlement to summary judgment by showing that its alleged negligence implicated a governmental function, and that there was no special relationship between the parties (see Nunez v. New York City Tr. Auth., 3 A.D.3d 481, 769 N.Y.S.2d 605;  Clinger v. New York City Tr. Auth., 85 N.Y.2d 957, 626 N.Y.S.2d 1008, 650 N.E.2d 855).   Since the plaintiff failed to raise a triable issue of fact in response to that showing, that branch of the defendant's motion which was for summary judgment dismissing the complaint should have been granted (see Weiner v. Metropolitan Transp. Auth., 55 N.Y.2d 175, 448 N.Y.S.2d 141, 433 N.E.2d 124).