D'Ambra v. New York City Transit Authority

Mar 1, 2005
Versions:16 A.D.3d 101
790 N.Y.S.2d 120
2005 N.Y. App. Div. LEXIS 2068

Order, Supreme Court, New York County (Robert D. Lippmann, J.), entered September 25, 2003, which denied defendant‘s motion for summary judgment, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment in favor of defendant dismissing the complaint.

Plaintiff was allegedly injured when she tripped and fell while descending a stairway in a subway station. Defendant satisfied its burden on summary judgment by submitting evidence in the form of maintenance records and testimony of maintenance employees establishing, as a matter of law, that no defect as alleged by plaintiff was ever reported, investigated or repaired at the location in question in the two-year period immediately prior to this incident. In response, plaintiff‘s evidence was inconsistent and speculative in identifying the defect allegedly causing her injury (see Kane v Estia Greek Rest., 4 AD3d 189 [2004]; Bitterman v Grotyohann, 295 AD2d 383 [2002]), and failed to establish the existence of such defect or that defendant had actual or constructive notice of it and sufficient time to remedy it (Lewis v Metropolitan Transp. Auth., 99 AD2d 246, 249 [1984], affd 64 NY2d 670 [1984]). Concur—Buckley, P.J., Sullivan, Nardelli, Williams and Sweeny, JJ.