Opinion
67 SSM 3.
Decided February 21, 2006.
APPEAL, by permission of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that Court, entered May 17, 2005. The Appellate Division (1) reversed, on the law, an order of the Supreme Court, New York County (Robert D. Lippman, J.), which had granted defendants' motion for summary judgment dismissing the complaint, (2) denied the motion, and (3) reinstated the complaint. The following question was certified by the Appellate Division: "Was the order of this Court, which reversed the order of Supreme Court, properly made?"
Plaintiff allegedly sustained injuries when he slipped and fell on an icy subway grate while exiting the front doors of a city bus. Supreme Court granted defendants' motion for summary judgment.
The Appellate Division concluded that there was no evidence that plaintiff had safely exited the bus before he fell; that a common carrier owes a duty to its passengers to stop at a place where they may safely disembark and leave the area; that liability rests upon a finding that the placement of the bus dictates that the passenger, in order to board or exit the bus, must negotiate a dangerous or defective path; that whether a common carrier has breached its duty is generally a question of fact to be determined by the jury; that to prevail on their motion for summary judgment, defendants were required to set forth evidentiary facts sufficient to entitle them to judgment as a matter of law, and that defendants did not meet that burden.
Malawer v. New York City Tr. Auth., 18 AD3d 293, affirmed.
Steve S. Efron, New York City ( Renee L. Cyr of counsel), for appellants.
John J. Appell, New York City, for respondent.
Chief Judge KAYE and Judges G.B. SMITH, CIPARICK, ROSENBLATT, GRAFFEO, READ and R.S. SMITH concur in memorandum.
OPINION OF THE COURT
MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative. Defendants owed a duty to plaintiff to stop at a place from which plaintiff could safely disembark and leave the area ( see Miller v. Fernan, 73 NY2d 844, 846). A triable issue of fact exists whether defendants breached that duty.
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order affirmed, etc.