MORALES v. SHELTER EXPRESS CORPORATION (2007)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Cullen, J.), dated May 23, 2006, as granted that branch of the motion of the defendant Viacom Outdoor, Inc., incorrectly sued herein as Outdoor Systems, Inc., a/k/a Viacom Outdoor, Inc., which was for summary judgment dismissing the complaint insofar as asserted against it and granted that branch of the cross motion of the defendant Shelter Express Corporation which was for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs.

 The Supreme Court properly granted that branch of the motion of the defendant Viacom Outdoor, Inc., incorrectly sued herein as Outdoor Systems, Inc., a/k/a Viacom Outdoor, Inc. (hereinafter Viacom), which was for summary judgment dismissing the complaint insofar as asserted against it.   The plaintiffs failed to raise a triable issue of fact in response to Viacom's prima facie showing that it had no actual or constructive notice of a defective condition in the glass of the bus shelter where the accident occurred (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572;  Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837-838, 501 N.Y.S.2d 646, 492 N.E.2d 774;  Mercer v. City of New York, 223 A.D.2d 688, 637 N.Y.S.2d 456, affd. 88 N.Y.2d 955, 647 N.Y.S.2d 159, 670 N.E.2d 443).

 The Supreme Court also properly granted that branch of the cross motion of the defendant Shelter Express Corporation (hereinafter Shelter Express) which was for summary judgment dismissing the complaint insofar as asserted against it.   The maintenance contract entered into by Shelter Express with Viacom's predecessor in interest did not constitute a comprehensive and exclusive obligation which displaced the owner's duty to safely maintain the bus shelter where the accident occurred (see Church v. Callanan Indus., 99 N.Y.2d 104, 111-112, 752 N.Y.S.2d 254, 782 N.E.2d 50;  Patterson v. New York City Tr. Auth., 5 A.D.3d 454, 456, 773 N.Y.S.2d 417;  Taylor v. Gannett Co., 303 A.D.2d 397, 398-399, 760 N.Y.S.2d 47).   Thus, the plaintiffs failed to raise a triable issue of fact in response to Shelter Express's prima facie showing that it owed the plaintiffs no duty of care (see Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 138, 746 N.Y.S.2d 120, 773 N.E.2d 485).

The parties' remaining contentions either need not be reached in light of this determination or are without merit.