DEWITT v. PORT AUTHORITY OF NEW YORK AND NEW JERSEY

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

Rahkeme DEWITT, etc., et al., Appellants, v. PORT AUTHORITY OF NEW YORK AND NEW JERSEY, et al., Respondents, et al., Defendants.

Decided: June 29, 1998

MILLER, J.P., THOMPSON, JOY and FLORIO, JJ. Oshman & Helfenstein, LLP, New York City (Charles Hefter and David L. Kremen, of counsel), for appellants. Montfort, Healy, McGuire & Salley, Garden City (Jennifer Lupo and E. Richard Rimmels, Jr., of counsel), for respondent Port Authority of New York and New Jersey. Diamond, Paino, Cardo, King, Peters & Fodera, Brooklyn (Neil L. Fishman, of counsel), for respondent Yonkers Contracting Company, Inc.

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 (Lerner, J.), dated August 21, 1997, as granted the motion and the cross motion respectively, of the defendants Port Authority of New York and New Jersey and Yonkers Contracting Company, Inc., for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.

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

The 10-year-old plaintiff and his friends crossed a bridge over, inter alia, a six-lane highway to reach the unfenced construction site where the defendant Yonkers Contracting Company, Inc. (hereinafter Yonkers), was constructing a highway ramp.   The construction site was located on property abutting that which was operated by the codefendant Port Authority of New York and New Jersey (hereinafter the Port Authority).   While on the construction site, the infant plaintiff and his friends rode on an abandoned luggage dolly that they found there, and during the course of riding on the dolly, the infant plaintiff was seriously injured.   The exact manner in which he came to be injured is unknown.   After this matter was placed on the trial calendar, at some point in time prior to April 23, 1997, the Port Authority moved for summary judgment dismissing the action.   Yonkers cross moved for the same relief in May 1997.   The motions were granted.   On appeal, the plaintiffs contend that the motions were improperly considered since they were brought without prior leave of the court as required by the amended CPLR 3212(a), and that in any event, they were improperly granted on the merits.   We reject those contentions and affirm.

The Port Authority's motion was properly entertained since it was made less than 120 days after the effective date of CPLR 3212(a) as amended (see, Newman v. Keuhnelian, 245 A.D.2d 164, 670 N.Y.S.2d 431;  Phoenix Garden Rest., Inc. v. Chu, 245 A.D.2d 164, 667 N.Y.S.2d 20).   Further, under the circumstances it was not an improper exercise of discretion for the Supreme Court to also entertain the cross motion of the codefendant Yonkers without a prior application for leave.

 The motions for summary judgment were properly granted.   The Port Authority showed it was an abutting landowner.   Since the record is devoid of any proof that the Port Authority either used the construction site and/or caused the injury, it was entitled to dismissal of the complaint and all cross-claims insofar as asserted against it (see, Kaufman v. Silver, 227 A.D.2d 383, 642 N.Y.S.2d 73, affd. 90 N.Y.2d 204, 659 N.Y.S.2d 250, 681 N.E.2d 417).   The infant plaintiff's actions in trespassing onto the construction site and his subsequent action in using an apparently abandoned luggage dolly found there, were superseding intervening acts which broke any causal connection between any alleged negligence on the part of Yonkers and the infant plaintiff's injuries (see, Libby v. Waldbaum's Inc., 240 A.D.2d 547, 658 N.Y.S.2d 454).

MEMORANDUM BY THE COURT.

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