Rockowitz v. City of New York

255 A.D.2d 434, 680 N.Y.S.2d 864, 1998 N.Y. App. Div. LEXIS 12006

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 16, 1998
• Status: Published

Opinion

—In an action to recover damages for personal injuries, etc., the defendant New York City Transit Authority appeals from an order of the Supreme Court, Kings County (Hutcherson, J.), dated September 25, 1997, which denied its motion, inter alia, for summary judgment dismissing the complaint insofar as asserted against it.

Ordered that the order is affirmed, with costs.

The plaintiff Lilly Rockowitz was allegedly injured when she slipped and fell on a rotten peach skin in a subway car.

Viewing the evidence in the light most favorable to the plaintiffs (see, Negri v Stop & Shop, 65 NY2d 625), we find that they have submitted evidence sufficient to raise an issue of fact as to whether the appellant had constructive notice of the condition which is alleged to have caused the accident and was negligent in failing to eliminate it (see, Rafael-Sharaf v Waldbaum’s, Inc., 238 AD2d 328; Qevani v 1957 Bronxdale Corp., 232 AD2d 284; Huth v Allied Maintenance Corp., 143 AD2d 634).

The appellant’s remaining contentions are without merit. O’Brien, J. P., Sullivan, Krausman and Florio, JJ., concur.