«DEL GAISO JUAN FACUNDO c/ GCBA», Cámara de Apelaciones Contencioso, Administrativo y Tributario C.A.B.A., 03-11-2015
SÍNTESIS.- En el caso, corresponde revocar el pronunciamiento de grado, y en consecuencia, rechazar «in limine» la acción de amparo interpuesta por el actor, con el objeto de que se ordene al Gobierno de la Ciudad de Buenos Aires que adecue la obra pública del paso bajo nivel.
En efecto, las presentes actuaciones se ha admitido la legitimación del actor basada exclusivamente en su condición de ciudadano, pero ello no basta por sí solo para demostrar la existencia de un derecho directo, inmediato, concreto o sustancial que permita reconocer legitimación para exigir ante los estrados judiciales la genérica regularidad de la marcha de los órganos que ejercen el poder público (conf. TSJ, Expte Nº 7236/10, “Epzteyn, Eduardo Ezequiel y otros c/ GCBA y otros s/ procesos incidentales en Epzteyn, Eduardo Ezequiel y otros c/ GCBA y otros s/ amparo (art. 14 CCABA), del 30/03/11).
Aquí el actor, en su brevísima demanda, no ha demostrado cuál era el perjuicio concreto que lo pudiese afectar derivado la obra pública ya construida por el Gobierno de la Ciudad de Buenos Aires y consistente en que el paso bajo nivel, posea un gálibo vertical de 2.40 metros. La mera invocación del derecho a la salud y a la circulación, no alcanzan para tener por configurado un caso judicial ni la legitimación del actor, en tanto ni siquiera ha explicado o justificado por qué el sistema de salud y la organización de los servicios de emergencias no cuentan con accesos paralelos para acudir en auxilio de un afectado, o con formas para sortear ese obstáculo.
La orfandad argumental del actor, sella la suerte de esta causa, e impone su archivo, dado que la generalidad y vaguedad de los términos de la demanda impiden tenerlo por legitimado y simultáneamente resultan insuficientes para tener por configurado un caso que habilite la intervención judicial. No ha podido establecer una situación jurídica protegida por el ordenamiento jurídico en virtud de la cual pudiese justificarse la acción entablada.
Fuente: Departamento de Biblioteca y Jurisprudencia del Consejo de la Magistratura de la Ciudad de Buenos Aires
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