McMillan v. New York City Transit Authority

Appellate Division of the Supreme Court of New York

McMillan v. New York City Transit Authority

38 A.D.3d 505, 833 N.Y.S.2d 103

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 6, 2007

StatusPublished

This text of 38 A.D.3d 505 (McMillan v. New York City Transit Authority) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McMillan v. New York City Transit Authority, 38 A.D.3d 505, 833 N.Y.S.2d 103 (N.Y. Ct. App. 2007).

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Opinion

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Solomon, J.), entered December 16, 2005, which denied its motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The defendant established its entitlement to judgment as a matter of law, thereby shifting the burden to the plaintiff to submit admissible evidence raising a triable issue of fact (see Ferrante v American Lung Assn., 90 NY2d 623 [1997]). In opposition to the defendant’s motion, the plaintiff submitted admissible evidence raising a triable issue of fact as to the size of the gap between the subway station platform and the train door where she fell and whether the existence of such a gap constituted negligence on the part of the defendant (id.; cf. Yarde v New York City Tr. Auth., 4 AD3d 352 [2004]). Accordingly, the Supreme Court properly denied the defendant’s motion for summary judgment. Miller, J.E, Schmidt, Ritter and Angiolillo, JJ., concur.

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In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Solomon, J.), entered December 16, 2005, which denied its motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The defendant established its entitlement to judgment as a matter of law, thereby shifting the burden to the plaintiff to submit admissible evidence raising a triable issue of fact (see Ferrante v American Lung Assn., 90 NY2d 623 [1997]). In opposition to the defendant’s motion, the plaintiff submitted admissible evidence raising a triable issue of fact as to the size of the gap between the subway station platform and the train door where she fell and whether the existence of such a gap constituted negligence on the part of the defendant (id.; cf. Yarde v New York City Tr. Auth., 4 AD3d 352 [2004]). Accordingly, the Supreme Court properly denied the defendant’s motion for summary judgment. Miller, J.E, Schmidt, Ritter and Angiolillo, JJ., concur.

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Bluebook (online)

38 A.D.3d 505, 833 N.Y.S.2d 103, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcmillan-v-new-york-city-transit-authority-nyappdiv-2007.

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