Beltran v. New York City Transit Authority

271 A.D.2d 230, 705 N.Y.S.2d 357, 2000 N.Y. App. Div. LEXIS 3843

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 4, 2000
• Status: Published

Opinion

—Order, Supreme Court, New York County (Eileen Bransten, J.), entered February 1, 1999, which granted the motion of New York City Transit Authority (NYCTA) for summary judgment dismissing the complaint against it, unanimously reversed, on the law, without costs, the motion denied and the complaint reinstated, without prejudice to renewal upon completion of discovery.

Plaintiff sues to recover for injuries allegedly sustained when she slipped and fell on snow and ice situated on a sidewalk near stairs leading to an elevated subway platform. Defendant NYCTA did not provide proof in admissible form that its employees did not create the subject snow condition. Plaintiff, in her affidavit, stated that she saw a uniformed man shoveling and piling up snow at the accident site a few days earlier. NYCTA failed to support, through an affidavit or other sworn testimony, its contention that the plaintiffs affidavit raised only a feigned issue or contradicted her General Municipal Law § 50-h testimony (see, Phillips v Bronx Lebanon Hosp., 268 AD2d 318; Perez v Paramount Communications, 247 AD2d 264, affd 92 NY2d 749). As such, plaintiff raised a triable issue of fact which precluded summary judgment. Concur — Nardelli, J. P., Ellerin, Lerner and Rubin, JJ.