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Regardless of whose duty it was to maintain the sidewalk at the bus stop location, the City, M Realty and A Realty all argue that plaintiff’s complaint should be dismissed on the premise that plaintiff cannot establish exactly where she fell, and thus, has not made out a prima facie case of negligence. A 50-h injury hearing was held at the NYCTA offices on July 6, 2004.

At plaintiff’s 50-h hearing, plaintiff stated that she fell in the street after she stepped off the bus. In pertinent part she stated that she exited from the front of the bus and either she stepped from the bottom step of the bus to the sidewalk and then slipped, or, she had taken two steps from the bus before her accident took place. Her 50-h testimony also indicated that both feet were off the bus and her right foot made contact with the street. She also stated that she put her other foot towards the sidewalk and then she slipped on the ice that was on the sidewalk.

Based on the plaintiff’s testimonies at the 50-h hearing and her deposition this court finds that plaintiff has established a prima facie case of negligence. The court reiterates that a question of fact exists as to who cleared the three foot path on the sidewalk area immediately surrounding the bus stop where plaintiff was injured.

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They oppose the City’s cross motion on two bases. The first basis for their personal opposition is their position that, if the plaintiff stepped on the curb and slipped there, then NYCAC § 7-210 is inapplicable, pursuant to NYCAC § 19-101 [d]. According to NYCAC § 19-101 (d), the sidewalk does not include the curb. NYCAC 19-101 (d) defines sidewalk as: that portion of a street between the curb lines, or the lateral lines of a roadway, and the adjacent property lines, but not including the curb, intended for the use of pedestrians.

The second basis for their opposition is that, while NYCAC § 7-210 does impose on abutting building owners the responsibility to clear sidewalks in front of the abutting premise of snow and ice, the statute does not also impose on the abutting landowner the City’s prior NYCAC § 7-210 duty to maintain a bus shelter or a bus stop area, should there be one located in front of that particular abutting landowner’s abutting premise.

The court’s responsibility to determine whether there is a duty “involves a very delicate balancing of such considerations as logic, common sense, science and public policy. Prior to the enactment of the new sidewalk law, it was the City’s duty to keep its sidewalks “reasonably free from snow and ice and the City could be held liable for the negligent failure to do so. After the enactment of NYCAC § 7-210, the duty to keep sidewalks clear of snow and ice was transferred to that of the abutting landowner.

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In this negligence action, motion sequence numbers 001 and 002 are consolidated and disposed of in accordance with the following decision and order. Under motion sequence No.001, co-defendant 1873 A Realty Corp. (A Realty) moves for an order, pursuant to CPLR 3212, granting it summary judgment dismissing the complaint and all claims and cross claims. Co-defendant City of New York (the City) cross-moves for an order granting it summary judgment dismissing the complaint and all cross claims.

Under motion sequence #002, co-defendants New York City Transit Authority (NYCTA), and Manhattan and Bronx Surface Transit Operating Authority (MABSTOA) move for an granting them summary judgment dismissing the complaint, all claims and cross claims. Co-defendant 1871 M Realty Corp. (M Realty) cross-moves for an order granting it summary judgment dismissing the complaint and all claims and cross claims. The plaintiff discontinued her action against the City but not against the remaining co-defendants. Based upon the following facts and law, MABSTOA’s and NYCTA’s motion should be granted under motion sequence # 002, but all other motions under motion sequence # 001 and # 002 should be denied, as a triable question of fact exists whether NYCAC § 7-210 still imposes a duty on the City to maintain bus shelters and bus stops.

Plaintiff sustained an injury to her person, at 1:30 P.M. on February 9, 2004, just after she was discharged from a NYCTA bus. Plaintiff, then 50 years old, suffered a fracture, requiring surgery and pinning, plus multiple disc herniations. Her injury occurred after she alighted from the bus and then, either after taking her first step, or a few steps, off the bus, slipped on ice at the bus stop location either in the street, on the curb, or on the sidewalk by the bus stop. Her husband, who also exited from the same bus ahead of her, did not slip and was not injured.
It is undisputed that there is a designated bus stop located directly in front of and in between the abutting premises identified as 1871 and 1873 Amsterdam Avenue. It is also undisputed that it had snowed several days prior to the accident. The abutting owner of 1871 Amsterdam Avenue is M Realty, and the abutting owner of 1873 Amsterdam Avenue is A Realty.

The accident occurred after the implementation of the new sidewalk law, Administrative Code of the City of New York (NYCAC) § 7-210, which now places the burden on the abutting landowner to maintain the sidewalk in a safe condition from the building to the street curb. NYCAC § 7-210 (b) provides in pertinent part:

“Notwithstanding any other provision of law, the owner of real property abutting any sidewalk, including but not limited to, the intersection quadrant for corner property, shall be liable for any injury to property or personal injury, including death, proximately caused by the failure of such owner to maintain such sidewalk in a reasonably safe condition. Failure to maintain such sidewalk in reasonably safe condition shall include, but not be limited to, the negligent failure to install, construct, reconstruct, repave, repair or replace defective sidewalk flags and the negligent failure to remove snow, ice, dirt or other material from the sidewalk.”

The City’s position is simply that, subsequent to the implementation of the new sidewalk law, the abutting landowners became responsible for the removal of snow and ice, pursuant to NYCAC § 7-210, which it alleges, by way of the unique fact pattern in this case, includes the bus stop and the immediate area surrounding the bus stop.

M Realty and A Realty, in essence, present identical arguments in opposition to the City’s summary judgment motion, and in support of that portion of their injury summary judgment motions alleging it is not their duty to maintain bus stops. While they acknowledge that it is their responsibility as abutting landowners to keep the sidewalks free of snow and ice, they maintain that their duty exists only for that portion of the sidewalk extending from the edge of the abutting property to the curb and does not include the area where the bus stop is located.

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The court finds and concludes that there has been compliance with the requirements of section 5208 (a) (2) (A) of the Insurance Law which requires notice to the police within 24 hours of the occurrence. Obviously, since the police were called to the scene of the accident shortly after its occurrence and made a report of the investigation, the court concludes that petitioner was not required to make any further report to the police and the court determines that the requirements of section 5208 (a) (2) (A) have been totally fulfilled.

II. Section 5218 (b) (5): Reasonable Efforts

Section 5218 of the Insurance Law provides in relevant part that:

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In this proceeding the petitioner seeks an order, pursuant to article 52 of the Insurance Law, permitting him to bring an action against defendant Motor Vehicle Accident Indemnification Corporation (hereinafter MVAIC).

At the hearing conducted before this court respondent conceded that petitioner was injured as a result of an accident involving a hit-and-run motorist and that petitioner is otherwise “qualified”, within the meaning of the Insurance Law, to bring an action against MVAIC. However, respondent argued that petitioner should be precluded from bringing said action because:

(1) he failed to comply with that portion of section 5208 (a) (2) (A) of the Insurance Law, which requires that the accident be reported to the police within 24 hours after the occurrence; and (2) he failed to comply with section 5218 (b) (5) which requires that petitioner make “all reasonable efforts to ascertain the identity of the motor vehicle and of its owner and operator.”Respondent argued further that in order for petitioner to satisfy the “reasonable efforts” requirement and obtain an order granting permission to proceed against MVAIC, petitioner must first exhaust his remedy and conclude a proceeding against the suspect tortfeasor which is pending in the Supreme Court, Bronx County. Thus, the court herein is also presented with ancillary issues which involve the jurisdiction and power of the Civil Court to issue an order joining and/or consolidating a proceeding in the Civil Court with a proceeding in the Supreme Court.

The relevant injury facts
At 7:20 P.M. on July 24, 1998 in the vicinity of East Tremont Avenue and Crotona Parkway in the County of Bronx the petitioner, while operating a bicycle, was injured when he was struck by a vehicle operated by an unknown motorist who fled the scene. After the police arrived at the scene of the accident, three witnesses were allegedly present and at least two of them provided inconsistent descriptions of the vehicle and its license plate. According to the petitioner, two of the three witnesses were never identified, and one of the two unidentified witnesses is alleged to have said that he chased a “white Chevrolet with New York plate number T218086C.” The police report identified only one witness, JO, and the report contained no mention of a Chevrolet or the alleged chase of the vehicle.

At the hearing, other than to identify the vehicle as white, the petitioner was unable, from personal knowledge, to provide any information which would assist in the identification of the vehicle or its owner and operator.
Neither the reporting police officer nor the witness JO was available to testify at the hearing. In addition, neither the petitioner nor the respondent offered any evidence concerning the source of the information contained in the police report, other than that which may be inferred from the document itself.

Petitioner, however, did subpoena one EO, who admitted that on July 24, 1998, he was the owner of a white 1990 Chevrolet vehicle bearing license plate number T218086C, which he used as a taxi. He claimed, however, that he was not involved in an accident on July 24, 1998 and stated that he used this vehicle on that date to travel to New Jersey where he remained from at least 1:00 P.M. to 7:00 P.M. at Newark Airport (waiting for an uncle who never arrived) and thereafter to a girlfriend’s house in Jersey City where he remained until 11:00 P.M. Although this inadmissible evidence directly implicates the witness EO as the owner of the vehicle which struck petitioner and fled the scene of the accident, it is rendered even less reliable as a result of the perhaps disingenuous, but otherwise unchallenged, denial by EO that he or his vehicle was involved in the accident.

The witness EO said that he first learned of the accident when he received a letter and “other papers” from petitioner’s attorney. Although he could not identify the other papers as a summons and complaint, it was established that a judicial proceeding is presently pending in the Supreme Court, Bronx County, under index number 66xx/XX in which the petitioner is named as plaintiff against EO as a defendant, arising out of this accident.
I. Section 5208 (a) (2) (A): Notice to Police

To Be Cont….
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The Court of Appeals granted leave and concluded that the Second Department had correctly dismissed the appeal. The Court of Appeals stated that, with limited exceptions, an appeal may be taken to the Appellate Division as of right from an order deciding a motion made upon notice when, among other possibilities, the order affects a substantial right. There is, however, no right of appeal from an ex parte order, including an order entered suasponte. The Court also stated that an order made suasponte is not an order deciding a motion on notice is apparent from various CPLR provisions, including the definition of motion and the provision for dismissal for failure to prosecute, which distinguishes between a court initiative’ and a party’s motion. While the trial court had created a procedure to ensure that the parties had an opportunity to be heard before the court acted, the Injury Court stressed that the submissions ordered suasponte by the trial court were not made pursuant to a motion on notice as contemplated by CPLR 5701 (a) (2). While the procedure in this particular case may well have produced a record sufficient for appellate review, there is no guarantee that the same would be true in the next case. Moreover, the amount of notice will vary from case to case, and its sufficiency may often be open to debate. Adherence to the procedure specified by CPLR 5701 (a) uniformly provides for certainty, while at the same time affording the parties a right of review by the Appellate Division. We are therefore unwilling to overwrite that statute.

As is evident from the briefs, the record and the attorneys’ statements at oral argument, the order determining the value of the parcels was not the product of a motion made on notice. Rather, that order was issued suasponte and therefore is not appealable as of right.

Defendant’s letter to the court requesting a telephone conference to resolve issues related to the East Coast appraisal was not a motion to value the properties. It is beyond cavil that a motion is a request for an order (CPLR 2211) and defendant’s letter contained no request for an order. Thus, the letter plainly could not serve as a notice of motion. Additionally, and unsurprisingly since defendant was not seeking an order but rather a telephone conference, the letter did not specify a return date and was not accompanied by any supporting papers (CPLR 2214 [a] A notice of motion shall specify the time and place of the hearing on the motion, the supporting papers upon which the motion is based, the relief demanded and the grounds therefor. Because the letter neither contained a request for an order nor complied with CPLR 2214, it could not have served as a notice of motion. The absence of a medical motion is not a technical defect that can be overlooked; under Sholes a motion is required to generate an order that is appealable as of right.

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Regardless of whether Supreme Court correctly vacated the stipulations that are the subject of this appeal, the stipulations have been vacated and this appeal is moot because the rights of the parties cannot be affected by a determination of this appeal. Because the appeal has been rendered moot we cannot and do not pass on the issues presented.

The dissent asserts that by ruling that the intervening order implicitly vacates the order on appeal, we thereby pass on a substantive issue and render an advisory opinion construing both the status of the order appealed from and the effect of an order not even before us. As is obvious from our decision, we pass on no substantive issues relating to the rights of the parties. Equally as obvious, we are not rendering an advisory opinion construing both the status of the order appealed from and the effect of an order not even before us. Rather, we simply conclude that the order on appeal is moot and therefore the appeal must be dismissed. Of course, we first conclude that the order vacating the stipulations implicitly vacates the order on appeal. But that conclusion merely reflects the exercise of our jurisdiction to determine our jurisdiction.

The dissent states that by moving to vacate the stipulations, personal injury defendants unilaterally prevented this Court from deciding whether the motion court erred in vacating what appears to be a valid agreement between the parties. In the first place, however, defendants took no unilateral action. Defendants made a motion on notice to vacate the stipulations, a motion Supreme Court granted. Second, this Court is not precluded from determining whether the stipulations are valid. To the contrary, we may determine that precise issue should plaintiff perfect his appeal from the order vacating the stipulations.

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On January 29, 2007, plaintiff and defendant entered into a stipulation of settlement on the record before Supreme Court.

The stipulation of settlement also contained provisions requiring plaintiff to assume all of the outstanding liabilities concerning the parcels. The parties apparently intended that plaintiff would pay defendant 55% of the net appraised value of both parcels and, in consideration for that payment and plaintiff’s assumption of responsibility for the outstanding liabilities concerning the parcels, defendant would assign his interest in the parcels to plaintiff, giving plaintiff sole ownership of both parcels. However, no provision requiring defendant to assign his interest in the parcels to plaintiff was included in the stipulation of settlement.

Supreme Court requested appraisals for both parcels from Skyline Appraisals Inc. and East Coast Appraisals, and the appraisals were performed. While neither party objected to the appraisals performed by Skyline, defendant sent a letter to Supreme Court objecting to the appraisal performed by East Coast. Defendant was concerned that the East Coast appraisal was inaccurate and greatly undervalued the parcels. injury Defendant requested a conference between the parties and the court to resolve issues relating to the East Coast appraisal; no motion was made by either party for any relief.

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Appeal from order, Supreme Court, Bronx County, entered on or about April 17, 2008, which determined the market value of two properties and directed closings thereon, dismissed, without costs.

In 1971 plaintiff JR, M.D., defendant RS, M.D., and a nonparty physician formed a closely held corporation, SAR. The following year SAR purchased a parcel of land in the Bronx. Plaintiff and defendant then bought out the nonparty’s one-third interest in SAR, giving plaintiff and defendant each a 50% interest in it. In 1976 plaintiff and defendant formed another closely held corporation, 91 Graham Avenue Realty Corporation, which purchased a parcel of land in Brooklyn. In 1977 the New York State Department of State dissolved SAR because it had failed to pay franchise taxes; 91 Graham was dissolved in 1980 for the same reason.

In September 2003 plaintiff commenced this action against injury defendant and the two dissolved corporations asserting causes of action to recover damages for fraud, breach of fiduciary duty and under Business Corporation Law § 720. Plaintiff also seeks an accounting from defendant regarding the corporations’ assets and access to the corporations’ records. The gravamen of the action is that defendant attempted to sell both the Bronx and Brooklyn parcels without plaintiff’s knowledge or consent; defendant transferred 91 Graham’s checking and savings accounts to a different bank and removed plaintiff’s name as an authorized signatory on transactions involving those accounts; defendant refused to provide plaintiff with the corporations’ records; and defendant formed a new corporate entity in 2003, SAR 2003, without consulting plaintiff. Defendant answered the action and asserted counterclaims seeking (1) personal injury for breach of fiduciary duty and under Business Corporation Law §§ 722, 723 and 724, (2) declarations that defendant owned two thirds of the shares of SAR because plaintiff agreed to transfer one sixth of his interest in that corporation to defendant if he managed the Bronx parcel, and that a contract of sale defendant executed on behalf of SAR regarding the Bronx parcel was valid, and (3) judicial supervision of the winding up of the affairs of SAR pursuant to Business Corporation Law § 1008.

In March 2004 defendant commenced a proceeding pursuant to article 10 of the Business Corporation Law in Supreme Court, Kings County, to wind up the affairs of 91 Graham. Defendant sought permission to sell the Brooklyn parcel and a declaration that he owns two thirds of the shares of 91 Graham and is entitled to two thirds of the net proceeds of the sale of the parcel. Defendant also sought damages against plaintiff for breach of fiduciary duty and under Business Corporation Law § 720. This proceeding was later consolidated with the Bronx action by an order of Supreme Court, Bronx County.

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In response to the question Detective E posed to the ABC Hospital administrator as to whether anyone had recently been treated for “any kind of slash wounds to the face,” the administrator disclosed the patient’s name and address and that the injury patient had been stitched on the left side of his face. Defendant claims this information was privileged because it revealed the cause of his facial wound, a slashing, and that it was acquired through the application of professional medical skill or knowledge. This is pure hyperbole, belied by the record. Defendant’s facial wound, a fresh scar that extended from below his ear almost to his chin, was conspicuous to the average layperson. There was no medical skill or knowledge behind the ascertainment of that information. The hospital administrator’s identification of defendant’s injury and its location, and that he had received facial stitches, revealed no more than what had been readily observable.

Here, there is no issue as to whether the injury at issue was discernible by a layperson. The request identified the nature of the wound, a slash, and its location, the face. Defendant’s reliance on case law, which involved a broad subpoena requesting information on persons treated for stab wounds or other wounds caused by a knife, without identifying the specific nature of the wound or its location, is similarly misplaced. In each of these cases, a medical determination was required to frame a response. That is not the case here.

Moreover, even were we to find a violation of the privilege, suppression of the information imparted would not be required. While it is axiomatic that when a defendant’s constitutional rights are violated, the fruits of such violation must be suppressed, a violation of a statute may be remedied by suppression only if the purpose of the statute is to give effect to a constitutional right.

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