Douglas v. New York City Transit Authority

19 A.D.2d 707, 241 N.Y.S.2d 472, 1963 N.Y. App. Div. LEXIS 3310

Opinion

Judgment insofar as it dismissed the complaint against defendant, the City of New York, unanimously reversed on the law and facts and new trial granted, with costs to appellant to abide the event and judgment otherwise unanimously affirmed, without costs. Plaintiff concedes that she failed to establish a prima facie case against any defendants except the City of New York and the Transit Authority. We agree and further find that the complaint was properly dismissed as to the defendant, Transit Authority. Proof was submitted, however, that presented an issue of fact as to the defendant, City of New York. Two eye witnesses to the accident were leaving the bus at or about the same time as plaintiff. Both testified (hat after appellant left the bus she took a few steps and fell. The defect in' the sidewalk that may have caused the fall was described as to size and proximity to the point of plaintiff’s passage. Photographs of the condition of the walk were placed in evidence. In this state of the proof it was error to dismiss the complaint as to the city. Concur — Botein, P. J., Stevens, Steuer, Bergan and Bastow, JJ.