Tolbert v. New York City Transit Authority

256 A.D.2d 171, 683 N.Y.S.2d 498, 1998 N.Y. App. Div. LEXIS 13717

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 17, 1998
• Status: Published

Opinion

—Order, Supreme Court, New York County (Louis York, J.), entered on or about January 8, 1998, which denied defendants-appellants’ motion for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

The motion was properly denied on the ground that triable issues of fact exist bearing upon whether defendants breached their duty to provide plaintiff with a safe place to alight, including whether defendants knew or should have known of the street pothole that allegedly caused plaintiff to trip and fall (see, Blye v Manhattan & Bronx Surface Tr. Operating Auth., 124 AD2d 106, 109, affd 72 NY2d 888), and whether vehicular and pedestrian traffic blocked any safe alternative path around the pothole to the curb (see, supra, at 110-111, comparing, inter alia, Rodriguez v Manhattan & Bronx Surface Tr. Operating Auth., 117 AD2d 541, lv denied 68 NY2d 602, with Keener v Tilton, 283 NY 454). We note that defendants’ claim that plaintiff negotiated her own path is supported only by their attorney’s affirmation. Concur — Nardelli, J. P., Wallach, Rubin and Williams, JJ.