Opinion
2014-04-22
Alice RAINES, Plaintiff–Respondent, v. MANHATTAN AND BRONX SURFACE TRANSIT OPERATING AUTHORITY, et al., Defendants–Appellants, Consolidated Edison Company of New York, Inc., Defendant–Respondent. [And A Third–Party Action].
Zaklukiewicz, Puzo & Morrissey, LLP, Islip Terrace (Eric Z. Leiter of counsel), for appellants. Sim & Record, LLP, Bayside (Sang J. Sim of counsel), for Alice Raines, respondent.
Zaklukiewicz, Puzo & Morrissey, LLP, Islip Terrace (Eric Z. Leiter of counsel), for appellants. Sim & Record, LLP, Bayside (Sang J. Sim of counsel), for Alice Raines, respondent.
David M. Santoro, New York (Stephen T. Brewi of counsel), for Consolidated Edison Company of New York, Inc., respondent.
Order, Supreme Court, New York County (Geoffrey D. Wright, J.), entered January 30, 2013, which denied defendants-appellants' motion for summary judgment, unanimously affirmed, without costs. Order, same court and Justice, entered August 28, 2013, which, upon reargument, adhered to the original determination, unanimously dismissed, without costs, as academic.
Triable issues of fact exist as to whether defendants-appellants breached their duty to provide plaintiff with a safe place to exit from the Access–A–Ride bus. In particular, there are triable issues of fact as to whether the driver knew or should have known of plaintiff's disability ( see Lewis v. New York City Tr. Auth., 100 A.D.3d 554, 555, 955 N.Y.S.2d 6 [1st Dept.2012], lv. denied21 N.Y.3d 856, 2013 WL 2350353 [2013] ), and whether the driver, by waiting for plaintiff at the front of the bus, suggested a path of egress to plaintiff that caused her to navigate a portion of the roadway containing the street pothole that allegedly caused her to trip and fall ( see Malawer v. New York City Tr. Auth., 18 A.D.3d 293, 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];Tolbert v. New York City Tr. Auth., 256 A.D.2d 171, 683 N.Y.S.2d 498 [1st Dept.1998] ).
We have considered defendants-appellants' remaining contentions and find them unavailing. TOM, J.P., RENWICK, RICHTER, FEINMAN, GISCHE, JJ., concur.