Prior Written Notice Required for Suit Against City for Icy Sidewalk injury: Puzhayeva v City of New York.

• Author: Rogak, Lawrence N.
• Position: COURTSIDE

Plaintiff slipped and fell on an icy sidewalk below elevated subway tracks. She sued the City and the Transit Authority, alleging that water dripping from the tracks froze on the sidewalk. The Court granted summary judgment to the Transit Authority, holding that plaintiff had no proof that water dripping from the tracks froze on the sidewalk, and to the City, holding that the City had no prior written notice of the icy condition.--LNR

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Baynes, J.), which granted the motion of the defendants New York City Transit Authority and Metropolitan Transit Authority for summary judgment.

The plaintiff allegedly was injured when she slipped and fell on a patch of ice while walking on the sidewalk to a subway station located on Kings Highway in Brooklyn. She commenced this action against the City of New York, the New York City Transit Authority (NYCTA), and the Metropolitan Transit Authority (MTA), alleging that the dangerous icy condition was caused by construction on the tracks above that created runoff onto the sidewalk below. At her deposition, the plaintiff testified that she did not see water dripping from the overhead tracks and platform; however, she assumed that was how the patch of ice formed since she had seen similar conditions under other elevated platforms.

The defendants moved for summary judgment dismissing the complaint insofar as asserted against them. In an order dated June 6, 2014, the Supreme Court granted the TA defendants' motion and denied the City's motion.

As a general rule, "liability for a dangerous or defective condition on property is... predicated upon ownership, occupancy, control or special use of the property... Where none is present, generally a party cannot be held liable for injuries caused by the dangerous or defective condition of the property" (Noia v Maselli, 45 AD3d 746). "An owner owes no duty to warn or to protect others from a defective or dangerous condition on a neighboring premises, unless the owner had created or contributed to it" (Galindo v Town of Clarkstown, 2 NY3d 633).

Here, the evidence submitted in support of the TA defendants' motion demonstrated, prima facie, that the sidewalk where the plaintiff fell was owned by the City. Furthermore, the TA defendants established, prima facie, that there was no construction taking place on the elevated tracks by the NYCTA on the date...