New York Supreme and/or Appellate Courts Appellate Division, First Department
April 24, 2012
ROSEMARY ATWELL, PLAINTIFF-RESPONDENT,
NEW YORK CITY TRANSIT AUTHORITY, DEFENDANT-APPELLANT, ANASTASSIS ATHANASTOS, ETC., DEFENDANT.
Atwell v New York City Tr. Auth.
Decided on April 24, 2012
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Mazzarelli, J.P., Sweeny, Moskowitz, Abdus-Salaam, Manzanet-Daniels, JJ.
Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered February 17, 2011, which denied defendant New York City Transit Authority's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
While defendant initially established its entitlement to judgment as a matter of law, plaintiff's evidence raises an issue of fact as to whether she appeared to be capable of negotiating the height differential, and thus, whether defendants owed her a duty to kneel the bus (see Trainer v City of New York, 41 AD3d 202 ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: APRIL 24, 2012
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