Atwell v. New York City Transit Authority

94 A.D.3d 620, 942 N.Y.S.2d 351

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 24, 2012
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered February 17, 2011, which denied defendant New York City Transit Authority’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

While defendant initially established its entitlement to judgment as a matter of law, plaintiffs evidence raises an issue of fact as to whether she appeared to be capable of negotiating the height differential, and thus, whether defendants owed her a duty to kneel the bus (see Trainer v City of New York, 41 AD3d 202 [2007]). Concur — Mazzarelli, J.P., Sweeny, Moskowitz, Abdus-Salaam and Manzanet-Daniels, JJ.