Bailey v. New York City Tr. Auth.

2020 NY Slip Op 2187, 119 N.Y.S.3d 861, 182 A.D.3d 436

Opinion

Bailey v New York City Tr. Auth. (2020 NY Slip Op 02187)

Bailey v New York City Tr. Auth.

2020 NY Slip Op 02187

Decided on April 2, 2020

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 2, 2020
Renwick, J.P., Richter, Mazzarelli, Singh, JJ.

11357 401326/11

[*1]Judith Bailey, Plaintiff-Respondent,

v

New York City Transit Authority, Defendant-Appellant.

Lawrence Heisler, Brooklyn (Timothy J. O'Shaughnessy of counsel), for appellant.

Da'Tekena Barango-Tariah, Brooklyn, for respondent.

Order, Supreme Court, New York County (Lisa A. Sokoloff, J.), entered July 10, 2019, which denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendant failed to establish prima facie entitlement to judgment as a matter of law by relying exclusively on plaintiff's allegations and deposition testimony. Plaintiff testified that the crowd on the subway platform was so large that the only space she could maneuver as she proceeded past a staircase was close to the edge, just behind the yellow strip, when she was bumped over the edge and onto the tracks below (see Stark v Penn Cent. Co. , 26 NY2d 761 [1970], affg 32 AD2d 910 [1st Dept 1969]). Thus, defendant did not show, as a matter of law, that the crowd was not " so large and unmanaged that a user of the platform was restricted in [her] free movements or was unable to find a safe standing place'" (Ryan v City of New York , 7 AD2d 298, 299 [1st Dept 1959], affd 6 NY2d 896 [1959], quoting Cross v Murray 260 App Div 1030, 1030 [2d Dept 1940]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 2, 2020

CLERK