Stewart v. New York City Transit Authority

Appellate Division of the Supreme Court of New York

Stewart v. New York City Transit Authority

45 A.D.3d 310, 844 N.Y.S.2d 696

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

DecidedNovember 8, 2007

StatusPublished

This text of 45 A.D.3d 310 (Stewart 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.

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Stewart v. New York City Transit Authority, 45 A.D.3d 310, 844 N.Y.S.2d 696 (N.Y. Ct. App. 2007).

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Opinion

Order, Supreme Court, New York County (Emily Jane Goodman, J.), entered October 20, 2006, which, in an action for personal injuries sustained when plaintiff tripped and fell over a wooden board in a subway station, denied defendant’s motion for summary judgment, unanimously affirmed, without costs.

Issues of fact exist, including whether the board over which plaintiff tripped was open and obvious, and, if so, the extent of plaintiffs comparative negligence, if any (see Orellana v Merola Assoc., 287 AD2d 412, 413 [2001]; DeJesus v F.J. Sciame Constr. Co., Inc., 20 AD3d 354, 354 [2005]). Such issues are raised by plaintiffs testimony that although she was aware of the ongoing construction in the subway station around the pedestrian walkway where she tripped, her view of the particular board on which she was walking was obstructed by a crowd of people (see Argento v Metropolitan Transp. Auth., 277 AD2d 165, 166 [2000]; George v New York City Tr. Auth., 306 AD2d 160, 161 [2003]). Furthermore, although defendant claims that it is undisputed that the boards used to cover trenches were painted yellow and had sloped edges, the record is devoid of testimony regarding the specific board on which plaintiff tripped (cf. Argenio at 165-166, citing, inter alia, Trincere v County of Suffolk, 90 NY2d 976 [1997]). Concur—Mazzarelli, J.P., Marlow, Williams, Catterson and Kavanagh, JJ.

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Order, Supreme Court, New York County (Emily Jane Goodman, J.), entered October 20, 2006, which, in an action for personal injuries sustained when plaintiff tripped and fell over a wooden board in a subway station, denied defendant’s motion for summary judgment, unanimously affirmed, without costs.

Issues of fact exist, including whether the board over which plaintiff tripped was open and obvious, and, if so, the extent of plaintiffs comparative negligence, if any (see Orellana v Merola Assoc., 287 AD2d 412, 413 [2001]; DeJesus v F.J. Sciame Constr. Co., Inc., 20 AD3d 354, 354 [2005]). Such issues are raised by plaintiffs testimony that although she was aware of the ongoing construction in the subway station around the pedestrian walkway where she tripped, her view of the particular board on which she was walking was obstructed by a crowd of people (see Argento v Metropolitan Transp. Auth., 277 AD2d 165, 166 [2000]; George v New York City Tr. Auth., 306 AD2d 160, 161 [2003]). Furthermore, although defendant claims that it is undisputed that the boards used to cover trenches were painted yellow and had sloped edges, the record is devoid of testimony regarding the specific board on which plaintiff tripped (cf. Argenio at 165-166, citing, inter alia, Trincere v County of Suffolk, 90 NY2d 976 [1997]). Concur—Mazzarelli, J.P., Marlow, Williams, Catterson and Kavanagh, JJ.

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45 A.D.3d 310, 844 N.Y.S.2d 696, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stewart-v-new-york-city-transit-authority-nyappdiv-2007.

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