Opinion
9784 Index 20299/17E
07-02-2019
Sandra E. DEFAY, Plaintiff–Respondent, v. The CITY OF NEW YORK, Defendant–Respondent, Metropolitan Transportation Authority, et al., Defendants, New York City Transit Authority, Defendant–Appellant.
Krez & Flores, LLP, New York (Jonathan Goldsmith of counsel), for appellant. Falk & Klebanoff PC, West Hempstead (Lawrence B. Goodman of counsel), for Sandra E. Defay, respondent. Zachary W. Carter, Corporation Counsel, New York (Eva L. Jerome of counsel), for The City of New York, respondent.
Krez & Flores, LLP, New York (Jonathan Goldsmith of counsel), for appellant.
Falk & Klebanoff PC, West Hempstead (Lawrence B. Goodman of counsel), for Sandra E. Defay, respondent.
Zachary W. Carter, Corporation Counsel, New York (Eva L. Jerome of counsel), for The City of New York, respondent.
Richter, J.P., Tom, Gesmer, Kern, Moulton, JJ.
Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered November 2, 2018, which, inter alia, denied the motion of defendant New York City Transit Authority (N.Y.CTA) for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.
NYCTA's motion was properly denied since the record presents triable issues of fact as to whether NYCTA breached its duty as a common carrier to provide plaintiff with a safe place to board the bus (see Archer v. New York City Tr. Auth., 25 A.D.3d 351, 806 N.Y.S.2d 582 [1st Dept. 2006] ; Malawer v. New York City Tr. Auth., 18 A.D.3d 293, 294–295, 795 N.Y.S.2d 201 [1st Dept. 2005], affd 6 N.Y.3d 800, 812 N.Y.S.2d 438, 845 N.E.2d 1268 [2006] ). The record shows that the bus stopped seven or eight feet from the curb adjacent to the bus stop, with a pothole, into which plaintiff fell, in the path that passengers would take walking from the sidewalk to board the bus. The fact that approximately 10 other passengers safely boarded the bus at the same time that plaintiff fell in the hole while attempting to board does not entitle NYCTA to summary judgment (see Bruno v. Port Auth. of N.Y. & N.J., 157 A.D.3d 444, 66 N.Y.S.3d 250 [1st Dept. 2018] ).
We have considered NYCTA's remaining arguments and find them unavailing.