PRENDERGAST v. NEW YORK CITY TRANSIT AUTHORITY (2023)

Order, Supreme Court, New York County (Denise M. Dominguez, J.), entered December 19, 2022, which granted plaintiff's motion for partial summary judgment on the issue of liability and dismissed the affirmative defense regarding plaintiff's comparative fault, unanimously modified, on the facts, the affirmative defense reinstated, and otherwise affirmed, without costs.

Plaintiff was injured when he was struck by the wheelchair ramp of a bus.  That bus was owned by defendants and operated by an employee of defendants.  The bus operator testified that he deployed the ramp and saw it hit plaintiff.  He testified that he gave warnings in a loud voice before lowering the ramp, which made a “very loud” beeping noise that was “excruciating.”

Plaintiff met his prima facie burden by submitting evidence, including his deposition testimony, that the operator was negligent in lowering the ramp onto the sidewalk when it was not reasonably safe to do so (see Rincon v. Renaud, 186 A.D.3d 1551, 131 N.Y.S.3d 75 [2d Dept. 2020]).  In opposition, defendants did not offer any nonnegligent explanation for the accident (see Acevedo v. CKF Produce Corp., 216 A.D.3d 885, 886, 188 N.Y.S.3d 670 [2d Dept. 2023]).  This accident was not within plaintiff's exclusive knowledge, because it occurred in the presence of a potential witness, namely the operator (compare Pabon v. 940 S. Blvd., LLC, 181 A.D.3d 547, 119 N.Y.S.3d 744 [1st Dept. 2020] [the plaintiff tripped and fell on sidewalk];  Grant v. Steve Mark, Inc., 96 A.D.3d 614, 947 N.Y.S.2d 97 [1st Dept. 2012] [ladder fell onto the plaintiff]).  Defendants' remaining arguments effectively assert comparative negligence by plaintiff, which he was not required to disprove to be entitled to partial summary judgment (see Rodriguez v. City of New York, 31 N.Y.3d 312, 317–320, 76 N.Y.S.3d 898, 101 N.E.3d 366 [2018]).

Supreme Court should not, however, have dismissed the affirmative defense of comparative negligence.  At summary judgment, issues of credibility may not be resolved, and all reasonable inferences must be drawn in favor of the nonmoving party (see e.g. Morejon v. New York City Tr. Auth., 216 A.D.3d 134, 136, 191 N.Y.S.3d 427 [2d Dept. 2023]).  Based on the operator's testimony, we find an issue of fact as to plaintiff's comparative negligence (see Acevedo, 216 A.D.3d at 887, 188 N.Y.S.3d 670), which defendants should be permitted to assert in mitigation of their damages at trial (see Rodriguez, 31 N.Y.3d at 323–324, 76 N.Y.S.3d 898, 101 N.E.3d 366).