Duncan v. New York City Transit Authority

260 A.D.2d 213, 686 N.Y.S.2d 702, 1999 N.Y. App. Div. LEXIS 3962

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 13, 1999
• Status: Published

Opinion

—Order, Supreme Court, New York County (Robert Lippmann, J.), entered on or about March 2, 1998, which, in an action for personal injuries sustained in a fall in a subway car, insofar as appealed from, granted defendant Transit Authority’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The action was properly dismissed in the absence of evidence that defendant had actual or constructive notice of the puddle in the subway car that caused plaintiff to slip and fall as she exited. Since the storm was ongoing, “the accumulation could have occurred as a result of water dripping from the clothing or umbrellas of other passengers who had boarded the subway car immediately prior to” plaintiff’s attempted exit (Alatief v New York City Tr. Auth., 256 AD2d 371, 371-372, citing Low v New York City Tr. Auth., 237 AD2d 493). It would be unreasonable to expect defendant to constantly clean the floors in all the subway cars during an ongoing storm (see, Bethel v New York City Tr. Auth., 92 NY2d 348, 356; compare, Lesser v Manhattan & Bronx Surface Tr. Operating Auth., 157 AD2d , affd sub nom. Fishman v Manhattan & Bronx Surface Tr. Operating Auth., 79 NY2d 1031). Concur — Rosenberger, J. P., Tom, Mazzarelli and Saxe, JJ.