Opinion
11357 Index 401326/11
04-02-2020
Judith BAILEY, Plaintiff–Respondent, v. NEW YORK CITY TRANSIT AUTHORITY, Defendant–Appellant.
Lawrence Heisler, Brooklyn (Timothy J. O'Shaughnessy of counsel), for appellant. Da'Tekena Barango–Tariah, Brooklyn, for respondent.
Lawrence Heisler, Brooklyn (Timothy J. O'Shaughnessy of counsel), for appellant.
Da'Tekena Barango–Tariah, Brooklyn, for respondent.
Renwick, J.P., Richter, Mazzarelli, Singh, JJ.
Order, Supreme Court, New York County (Lisa A. Sokoloff, J.), entered July 10, 2019, which denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Defendant failed to establish prima facie entitlement to judgment as a matter of law by relying exclusively on plaintiff's allegations and deposition testimony. Plaintiff testified that the crowd on the subway platform was so large that the only space she could maneuver as she proceeded past a staircase was close to the edge, just behind the yellow strip, when she was bumped over the edge and onto the tracks below (see Stark v. Penn Cent. Co., 26 N.Y.2d 761, 309 N.Y.S.2d 203, 257 N.E.2d 651 [1970], affg 32 A.D.2d 910, 302 N.Y.S.2d 38 [1st Dept. 1969] ). Thus, defendant did not show, as a matter of law, that the crowd was not " ‘so large and unmanaged that a user of the platform was restricted in [her] free movements or was unable to find a safe standing place’ " ( Ryan v. City of New York, 7 A.D.2d 298, 299, 182 N.Y.S.2d 616 [1st Dept. 1959], affd 6 N.Y.2d 896, 190 N.Y.S.2d 705, 160 N.E.2d 924 [1959], quoting Cross v. Murray 260 App.Div. 1030, 1030, 24 N.Y.S.2d 500 [2d Dept. 1940] ).