In a decision dated October 8, 2010, Justice Howard H. Sherman granted defendants’ motion to the extent of awarding summary judgment in favor of the City of New York dismissing the plaintiff’s complaint and defendants’ motion to change venue to the extent of changing the venue from Bronx County to New York County. The plaintiff commenced this action in February 2010, after a hearing pursuant to General Municipal Law 50-h was held in January. It is alleged that the City was and is the owner of the premises under construction known as the Alexander Hamilton Bridge in Bronx County. It is also alleged that the City was negligent in the ownership of the premises on which the plaintiff, a construction worker, tripped and fell and that the City violated Labor Law §§200, 240(1) and 241(6). The defendants joined issue with the service of their answer in April of 2010. Along with its answer the defendants served a demand for a change of venue to Suffolk County contending that the plaintiff’s designation of Bronx County was improper. The defendants moved for an order awarding the City summary judgment dismissing the plaintiff’s complaint against it on the grounds that it is not an owner under the terms of the Labor law and otherwise owed no duty of care to the plaintiff. In addition, the defendants moved for a change of the place of the trial of this action from Bronx County to Suffolk County as of right pursuant to CPLR 503, 505, 510(1) and 511(b), and on the grounds that once the City is awarded summary judgment, there is no longer a basis for maintaining venue in Bronx County. The plaintiffs cross-moved for an order denying the defendants’ motion for summary judgment or, alternatively, changing the venue to New York County or granting leave to discontinue the action. The court granted summary judgment to the City which met its burden of proving that it was not an owner of the premises in question. The evidence set forth by the City proved that the Alexander Hamilton Bridge is part of the State Arterial Highway System, and though the City provides routine maintenance of the bridge, the State has the responsibility for the repair work, including the construction project being performed at the time of the plaintiff’s accident. Moreover, the City’s routine maintenance obligations with respect to the bridge area were suspended during the course of the very construction project on which the plaintiff was injured. Regarding the motions to change venue, the court determined that in light of the summary dismissal of the action as against the City, and the settled principle that the benefit of CPLR 504(3) runs not to individual litigants but to the municipality, the court found no basis for the trial of this action against the remaining defendant to be held in Bronx County. Therefore, it decided that venue would be proper in New York County where one of the remaining defendants has its principal place of business.
Murtha v. City of New York et al., Index No. 301594/10 (Bronx Co. Sup. Ct., October 8, 2010)