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Zuckerman v. New York

Court of Appeals of New York

February 7, 1980, Argued ; April 1, 1980, Decided

No Number in Original

Opinion

 [*560]  [**718]  [***596]    OPINION OF THE COURT

We repeat today a precept frequently stated -- ] where the moving party has demonstrated its entitlement to summary judgment, the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure so to do, and the submission of a hearsay affirmation by counsel alone does not satisfy this requirement.

On April 3, 1975 plaintiff (who is not a party to the present appeal) was injured when she fell at a curb near a bus stop located in the City of New York while she was attempting to board a bus. She thereafter instituted an action against the city as owner of the sidewalk, the New York City Transit Authority as operator of the bus, Royfost Co., Inc., the owner of the abutting property, and Harvey's Seafood House, Inc., the tenant in the abutting property. Each  [**719]  of the four defendants cross-claimed against the others, simply asking for indemnification or apportionment of liability under Dole v Dow Chem. Co. (30 [****8]  NY2d 143).

Because the only basis for liability of the transit authority set out in the complaint was its alleged failure to have maintained the sidewalk and curb at the site of the accident in a safe condition and its negligence in permitting it to have become dangerous, the transit authority moved for summary judgment dismissing plaintiff's pleading as to it, asserting that it was under no legal obligation to maintain the sidewalk or curb. Agreeing with that contention, on June 19, 1977 Supreme Court granted the relief requested. No appeal from that disposition was taken by plaintiff or by any of the other defendants, each of whom had been served with notice of the transit authority's motion.

The transit authority then moved for summary judgment  [*561]  dismissing all cross claims against it, renewing its disclaimer of obligation with regard to sidewalk or curb maintenance and pointing out that if, as had been determined on the previous motion for summary judgment, it owed no duty to plaintiff for the condition of the sidewalk, it could owe no obligation of contribution to the codefendants. The city opposed the motion on a ground subsequently abandoned after it had aligned [****9]  itself with the position of Royfost, owner of the abutting  [***597]  property. The latter opposed the motion to dismiss by an affirmation of its attorney stating that, although plaintiff's complaint alleging liability of the transit authority predicated on an obligation to maintain the sidewalk and curb had been dismissed, in a comptroller's hearing 1 plaintiff said that as she prepared to enter the bus her foot sank into mud at the curb and that this happened because the bus did not stop at the curb. The attorney concluded that the accident was therefore caused by the transit authority because its bus did not pull up to the curb and urged that a trial with respect to the cross claims should be had because "[upon] the trial of the action, which will doubtless entail a thorough examination of plaintiff and which may entail a thorough examination of other witnesses to the occurrence, the evidence will doubtless support the view that New York City Transit Authority through the negligent and reckless operation of its buses particularly with regard to boarding passengers, caused plaintiff to suffer the injuries of which she complains." Nothing accompanied the attorney's affirmation.  [****10]  

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49 N.Y.2d 557 *; 404 N.E.2d 718 **; 427 N.Y.S.2d 595 ***; 1980 N.Y. LEXIS 2175 ****

Muriel Zuckerman, Plaintiff, v. City of New York et al., Respondents, New York City Transit Authority, Appellant, et al., Defendant

Prior History:  [****1]  Appeal, by permission of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of said court, entered February 15, 1979, which affirmed an order of the Supreme Court at Special Term (Sidney H. Asch, J.), entered in New York County, denying a motion by defendant New York City Transit Authority for summary judgment dismissing cross claims against it. The following question was certified by the Appellate Division: "Was the order of the Supreme Court, as affirmed by this Court, properly made?"

Plaintiff was injured when she fell at a curb near a bus stop in the City of New York while she was attempting to board a bus. She thereafter instituted an action against the city as owner of the sidewalk, the New York City Transit Authority as operator of the bus, the owner of the abutting property and the tenant in the abutting property. Each of the four defendants cross-claimed against the others for indemnification or apportionment. Because the only basis for liability of the transit authority set out in the complaint was its alleged failure to have maintained the sidewalk and curb at the site of the accident in a safe condition and its negligence [****2]  in permitting it to have become dangerous, the transit authority moved for summary judgment dismissing plaintiff's pleading as to it, asserting that it was under no legal obligation to maintain the sidewalk or curb. Agreeing with that contention, Supreme Court granted the relief requested. No appeal from that disposition was taken by plaintiff or any of the defendants, each of whom had been served with notice of the transit authority's motion. The transit authority then moved for summary judgment dismissing all cross claims against it, renewing its disclaimer of obligation with regard to sidewalk or curb maintenance and pointing out that if, as had been determined on the previous motion for summary judgment, it owed no duty to plaintiff for the condition of the sidewalk, it could owe no obligation of contribution to the codefendants. The city and the property owner opposed the motion to dismiss by an affirmation of the owner's attorney stating that although plaintiff's complaint alleging liability of the transit authority predicated on an obligation to maintain the sidewalk and curb had been dismissed, in a comptroller's hearing plaintiff said that as she prepared to enter the [****3]  bus her foot sank into mud at the curb and that this happened because the bus did not stop at the curb. The attorney concluded that the accident was therefore caused by the transit authority because its bus did not pull up to the curb and urged that a trial with respect to the cross claims should be had because "[upon] the trial of the action * * * evidence will doubtless support the view that New York City Transit Authority through the negligent and reckless operation of its buses particularly with regard to boarding passengers, caused plaintiff to suffer the injuries of which she complains." Nothing accompanied the attorney's affirmation. The Supreme Court denied the transit authority's motion for summary judgment and the Appellate Division affirmed, holding that the transit authority might be held liable to one or more of its codefendants by reason of negligence in the operation of its bus despite the summary dismissal of plaintiff's complaint against the transit authority. The court also concluded that the hearsay affirmation of the owner's attorney was sufficient to preclude the grant of summary judgment.

The Court of Appeals reversed and answered the certified question [****4]  in the negative, holding, in an opinion by Judge Jones, that the submission of a hearsay affirmation by counsel alone does not satisfy the requirement that the party opposing a motion for summary judgment, to which the other party would otherwise be entitled, demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure to do so.

 Zuckerman v City of New York, 66 AD2d 248. Zuckerman v City of New York, 49 NY2d  .

Disposition: Reversed.

CORE TERMS

transit authority, summary judgment motion, affirmation, curb, summary judgment, sidewalk, transit, evidentiary proof, codefendants

Civil Procedure, Summary Judgment, Opposing Materials, General Overview, Burdens of Proof, Supporting Materials, Judgments, Affidavits