Baez-Sharp v. New York City Transit Authority

Appellate Division of the Supreme Court of New York

Baez-Sharp v. New York City Transit Authority

38 A.D.3d 229, 830 N.Y.S.2d 555

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 6, 2007

StatusPublished

This text of 38 A.D.3d 229 (Baez-Sharp v. New York City Transit Authority) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Baez-Sharp v. New York City Transit Authority, 38 A.D.3d 229, 830 N.Y.S.2d 555 (N.Y. Ct. App. 2007).

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Opinion

Order, Supreme Court, New York County (Robert D. Lippmann, J.), entered January 23, 2006, which, to the extent appealed from as limited by the briefs, granted defendant New York City Transit Authority’s motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion denied and the complaint reinstated as against that defendant only.

Given the allegations in plaintiffs notice of claim, asserting, inter alia, a “leaky” or wet condition in the subject subway stairwell, defendant’s proffer, in support of its motion for summary judgment, of plaintiffs statutory hearing testimony that she slipped on something wet on the stairs did not establish, as a matter of law, that defendant lacked notice of the watery condition. Further, to the extent that the motion court relied on the accident reports that were unaccompanied by affidavits attesting to the preparers’ personal knowledge and/or duty to create such reports, that was error (Bendik v Dybowski, 227 AD2d 228, 229 [1996]). As such, defendant failed in its initial burden, as movant, to establish, as a matter of law, that it did not create and did not have actual or constructive notice of the watery and hazardous condition of the stairway. Concur—Tom, J.E, Sullivan, Nardelli, Gonzalez and Malone, JJ.

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Order, Supreme Court, New York County (Robert D. Lippmann, J.), entered January 23, 2006, which, to the extent appealed from as limited by the briefs, granted defendant New York City Transit Authority’s motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion denied and the complaint reinstated as against that defendant only.

Given the allegations in plaintiffs notice of claim, asserting, inter alia, a “leaky” or wet condition in the subject subway stairwell, defendant’s proffer, in support of its motion for summary judgment, of plaintiffs statutory hearing testimony that she slipped on something wet on the stairs did not establish, as a matter of law, that defendant lacked notice of the watery condition. Further, to the extent that the motion court relied on the accident reports that were unaccompanied by affidavits attesting to the preparers’ personal knowledge and/or duty to create such reports, that was error (Bendik v Dybowski, 227 AD2d 228, 229 [1996]). As such, defendant failed in its initial burden, as movant, to establish, as a matter of law, that it did not create and did not have actual or constructive notice of the watery and hazardous condition of the stairway. Concur—Tom, J.E, Sullivan, Nardelli, Gonzalez and Malone, JJ.

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Bluebook (online)

38 A.D.3d 229, 830 N.Y.S.2d 555, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baez-sharp-v-new-york-city-transit-authority-nyappdiv-2007.

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