JAFFE v. NEW YORK CITY TRANSIT AUTHORITY

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Supreme Court, Appellate Division, Second Department, New York.

Beth JAFFE, et al., Respondents, v. NEW YORK CITY TRANSIT AUTHORITY, Appellant.

Decided: June 24, 2008

WILLIAM F. MASTRO, J.P., ROBERT A. SPOLZINO, DAVID S. RITTER, and JOHN M. LEVENTHAL, JJ. Wallace D. Gossett, Brooklyn, N.Y. (Anita Isola of counsel), for appellant. Peter S. Thomas, P.C., Forest Hills, N.Y., for respondents.

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Queens County (Lane, J.), dated June 29, 2007, which denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is granted.

 Contrary to the holding of the Supreme Court, the defendant made a prima facie showing that it neither created nor had actual or constructive notice of a dangerous condition on the subway car in question (see Simpson v. City of New York Tr. Auth., 44 A.D.3d 930, 844 N.Y.S.2d 108;  McKenzie v. County of Westchester, 38 A.D.3d 855, 856, 835 N.Y.S.2d 213;  Taylor v. New York City Tr. Auth., 19 A.D.3d 478, 479, 798 N.Y.S.2d 467;  Spooner v. New York City Tr. Auth., 298 A.D.2d 575, 750 N.Y.S.2d 91).   A general awareness that the floor of the car might be wet during a rainstorm is insufficient to establish constructive notice of a dangerous condition (see Alatief v. New York City Tr. Auth., 256 A.D.2d 371, 681 N.Y.S.2d 562;  Low v. New York City Tr. Auth., 237 A.D.2d 493, 655 N.Y.S.2d 983;  see also Simpson v. City of New York Tr. Auth., 44 A.D.3d at 930, 844 N.Y.S.2d 108;  McKenzie v. County of Westchester, 38 A.D.3d at 855-856, 835 N.Y.S.2d 213;  Taylor v. New York City Tr. Auth., 19 A.D.3d at 479, 798 N.Y.S.2d 467;  Spooner v. New York City Tr. Auth., 298 A.D.2d 575, 750 N.Y.S.2d 91).   Thus, the defendant established its entitlement to judgment as a matter of law dismissing the complaint.   In opposition, contrary to the conclusion of the Supreme Court, the plaintiffs failed to raise a triable issue of fact (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).   Counsel's affirmation presented nothing more than speculation and surmise and a fabricated issue of fact designed to avoid the consequences of the plaintiff's earlier admissions and testimony, and thus was insufficient to defeat the defendant's motion (see Skouras v. New York City Tr. Auth., 48 A.D.3d 547, 852 N.Y.S.2d 206;  Karwowski v. New York City Tr. Auth., 44 A.D.3d 826, 844 N.Y.S.2d 96).   Accordingly, the Supreme Court should have granted the defendant's motion for summary judgment dismissing the complaint.

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