Opinion
2013-04-23
Edwin R. PAGAN, Plaintiff–Respondent, v. METROPOLITAN TRANSPORTATION AUTHORITY, et al., Defendants–Appellants.
Landman Corsi Ballaine & Ford P.C., New York (William G. Ballaine of counsel), for appellants. Kahn Gordon Timko & Rodriques, P.C., New York (Lester C. Rodriques of counsel), for respondent.
Landman Corsi Ballaine & Ford P.C., New York (William G. Ballaine of counsel), for appellants. Kahn Gordon Timko & Rodriques, P.C., New York (Lester C. Rodriques of counsel), for respondent.
GONZALEZ, P.J., MAZZARELLI, MOSKOWITZ, RENWICK, MANZANET–DANIELS, JJ.
Order, Supreme Court, New York County (Michael D. Stallman, J.), entered August 1, 2012, which, in this personal injury action arising from plaintiff's alleged slip and fall on water on the floor of defendant Metro–North Railroad's train, to the extent appealed from, denied defendant's motion for summary judgment, unanimously affirmed, without costs.
An issue of fact exists as to whether defendant's employee created the alleged hazardous condition by leaving an end door open, allowing rainwater to enter the subject car. Under the circumstances, the fact that it was raining at the time of the incident is not a defense to liability ( see Cook v. Rezende, 32 N.Y.2d 596, 599, 347 N.Y.S.2d 57, 300 N.E.2d 428 [1973] ). Defendants failed to preserve their contention that plaintiff's affidavit submitted in opposition to their motion created a feigned issue of fact. In any event, the motion court properly considered the affidavit because it does not contradict plaintiff's prior testimony, but rather amplifies it ( see Castro v. New York City Tr. Auth., 52 A.D.3d 213, 214, 859 N.Y.S.2d 417 [1st Dept. 2012] ).