New York Supreme and/or Appellate Courts Appellate Division, First Department
April 23, 2013
EDWIN R. PAGAN, PLAINTIFF-RESPONDENT,
METROPOLITAN TRANSPORTATION AUTHORITY, ET AL., DEFENDANTS-APPELLANTS.
Pagan v Metropolitan Transp. 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 April 23, 2013
Gonzalez, P.J., Mazzarelli, Moskowitz, Renwick, Manzanet-Daniels, JJ.
Order, Supreme Court, New York County (Michael D. Stallman, J.), entered August 1, 2012, which, in this personal injury action arising from plaintiff's alleged slip and fall on water on the floor of defendant Metro-North Railroad's train, to the extent appealed from, denied defendant's motion for summary judgment, unanimously affirmed, without costs.
An issue of fact exists as to whether defendant's employee created the alleged hazardous condition by leaving an end door open, allowing rainwater to enter the subject car. Under the circumstances, the fact that it was raining at the time of the incident is not a defense to liability (see Cook v Rezende, 32 NY2d 596, 599 ). Defendants failed to preserve their contention that plaintiff's affidavit submitted in opposition to their motion created a feigned issue of fact. In any event, the motion court properly considered the affidavit because it does not contradict plaintiff's prior testimony, but rather amplifies it (see Castro v New York City Tr. Auth., 52 AD3d 213, 214 [1st Dept 2012]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: APRIL 23, 2013
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