Ginsberg v. New York City Transit Authority

Appellate Division of the Supreme Court of New York

Ginsberg v. New York City Transit Authority

247 A.D.2d 307, 668 N.Y.S.2d 464, 1998 N.Y. App. Div. LEXIS 1597

Appellate Division of the Supreme Court of the State of New York·Decided February 24, 1998·Published·Cited by 1 cases

Opinion

Order, Supreme Court, New York County (Robert Lippmann, J.), entered June 17, 1997, which granted defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendant’s evidence that the turnstile area where plaintiff alleges he slipped and fell on a puddle of vomit had been cleaned no more than an hour and 45 minutes before the accident shifted to plaintiff the burden of coming forward with evidence as to how long the vomit had been there, or at least that it was there long enough for defendant to have discovered it and cleaned it up. This plaintiff failed to do. It does not avail plaintiff that defendant may have had a general awareness of dangerous slippery conditions frequently created by vagrants in the area (see, Gordon v American Museum of Natural History, 67 NY2d 836; Rosado v New York City Hous. Auth., 236 AD2d 204, lv denied 89 NY2d 814). The instant post-note-of-issue motion for summary judgment, made on March 30, 1997 in an action that was pending on January 1, 1997, was timely under amended CPLR 3212 (a) (see, Phoenix Garden Rest, v Chu, 245 AD2d 164).

Concur — Rosenberger, J. P., Wallach, Williams and Tom, JJ.

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Order, Supreme Court, New York County (Robert Lippmann, J.), entered June 17, 1997, which granted defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendant’s evidence that the turnstile area where plaintiff alleges he slipped and fell on a puddle of vomit had been cleaned no more than an hour and 45 minutes before the accident shifted to plaintiff the burden of coming forward with evidence as to how long the vomit had been there, or at least that it was there long enough for defendant to have discovered it and cleaned it up. This plaintiff failed to do. It does not avail plaintiff that defendant may have had a general awareness of dangerous slippery conditions frequently created by vagrants in the area (see, Gordon v American Museum of Natural History, 67 NY2d 836; Rosado v New York City Hous. Auth., 236 AD2d 204, lv denied 89 NY2d 814). The instant post-note-of-issue motion for summary judgment, made on March 30, 1997 in an action that was pending on January 1, 1997, was timely under amended CPLR 3212 (a) (see, Phoenix Garden Rest, v Chu, 245 AD2d 164).

Concur — Rosenberger, J. P., Wallach, Williams and Tom, JJ.

Ginsberg v. New York City Transit Authority, 247 A.D.2d 307, 668 N.Y.S.2d 464, 1998 N.Y. App. Div. LEXIS 1597 (N.Y. Ct. App. 1998).

Pincite

247 A.D.2d 307 (Ginsberg v. New York City Transit Authority) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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