Opinion
2018-12359 Index No. 500605/16
08-21-2019
Irena K. NOWAK, Respondent, v. CITY OF NEW YORK, et al., Defendants, New York City Transit Authority, Appellant.
Lawrence Heisler, Brooklyn, N.Y. (Timothy J. O'Shaughnessy of counsel), for appellant. Law Office of Yuriy Prakhin P.C., Brooklyn, N.Y. (Gregory A. Nahas of counsel), for respondent.
Lawrence Heisler, Brooklyn, N.Y. (Timothy J. O'Shaughnessy of counsel), for appellant.
Law Office of Yuriy Prakhin P.C., Brooklyn, N.Y. (Gregory A. Nahas of counsel), for respondent.
JOHN M. LEVENTHAL, J.P., SHERI S. ROMAN, HECTOR D. LASALLE, LINDA CHRISTOPHER, JJ.
DECISION & ORDER ORDERED that the order is affirmed, with costs.
On January 20, 2015, the plaintiff was attempting to board a bus allegedly owned and operated by the defendant New York City Transit Authority (hereinafter the NYCTA) at a bus stop on Ocean Avenue, when she tripped and fell as a result of an allegedly dangerous condition in the roadway in front of the bus. The plaintiff commenced this action against the NYCTA and others to recover damages for personal injuries, alleging, among other things, that the NYCTA was negligent in failing to allow safe passage to her as she attempted to board the bus.
After joinder of issue and discovery, the NYCTA moved, in effect, for summary judgment dismissing the amended complaint and all cross claims insofar as asserted against it. The Supreme Court denied the motion, and the NYCTA appeals.
A transit company or a common carrier is under a duty to provide a prospective passenger with a reasonably safe, direct entrance onto the vehicle, clear of any dangerous obstruction or defect which would impede that entrance (see Almonte v. City of New York , 123 A.D.3d 1067, 1068, 2 N.Y.S.3d 131 ; Saidoff v. New York City Tr. Auth. , 105 A.D.3d 726, 727, 963 N.Y.S.2d 157 ; Kasper v. Metropolitan Transp. Auth. Long Is. Bus , 90 A.D.3d 998, 999, 935 N.Y.S.2d 645 ; Mahase v. Manhattan & Bronx Surface Tr. Operating Auth. , 3 A.D.3d 410, 410, 771 N.Y.S.2d 99 ; Blye v. Manhattan & Bronx Surface Tr. Operating Auth. , 124 A.D.2d 106, 111, 511 N.Y.S.2d 612, affd 72 N.Y.2d 888, 532 N.Y.S.2d 752, 528 N.E.2d 1225 ). "Stated differently, imposing liability requires a finding that the placement of the bus dictates that the passenger, in order to board the bus, must negotiate a dangerous or defective path" ( Blye v. Manhattan & Bronx Surface Tr. Operating Auth. , 124 A.D.2d at 111–112, 511 N.Y.S.2d 612 ; see Meyers v. City of New York , 215 A.D.2d 543, 626 N.Y.S.2d 545 ).
Here, viewing the evidence submitted in support of the NYCTA's motion in the light most favorable to the nonmoving parties, the NYCTA failed to demonstrate, prima facie, that the bus operator provided the plaintiff with a reasonably safe entrance onto the bus (cf. Almonte v. City of New York , 123 A.D.3d at 1067, 2 N.Y.S.3d 131 ). Since the NYCTA failed to establish its prima facie entitlement to judgment as a matter of law, we need not review the sufficiency of the plaintiff's opposition papers (see Winegrad v. New York Univ. Med. Ctr. , 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).
Accordingly, we agree with the Supreme Court's determination to deny the NYCTA's motion, in effect, for summary judgment dismissing the amended complaint and all cross claims insofar as asserted against it.
LEVENTHAL, J.P., ROMAN, LASALLE and CHRISTOPHER, JJ., concur.