New York Supreme and/or Appellate Courts Appellate Division, First Department
February 28, 2013
FRANCIA GORDZICA, PLAINTIFF-RESPONDENT,
THE NEW YORK CITY TRANSIT AUTHORITY, DEFENDANT-APPELLANT.
Gordzica v New York City Tr. Auth.
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.
Decided on February 28, 2013
Tom, J.P., Sweeny, Renwick, Abdus-Salaam, Manzanet-Daniels, JJ.
Judgment, Supreme Court, Bronx County (Mary Ann Brigantti- Hughes, J.), entered July 18, 2011, upon a jury verdict, awarding plaintiff the principal amount of $1,040,000, unanimously reversed, on the law, without costs, the judgment vacated, and the matter remanded for a new trial.
The court erred in admitting the alleged statement made by defendant's ticket booth clerk to plaintiff that she had reported the defective condition six times prior to plaintiff's trip and fall. The evidence does not show that the statement was made within the clerk's authority as a speaking agent on behalf of defendant (see Tyrrell v Wal-Mart Stores, 97 NY2d 650 ; Loschiavo v Port Auth of N.Y. & N.J., 58 NY2d 1040 ). The error in admitting the statement was not harmless under the circumstances presented.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 28, 2013
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