BAEZ SHARP v. Metropolitan Transportation Authority, Defendant. (2007)

Order, Supreme Court, New York County (Robert D. Lippmann, J.), entered January 23, 2006, which, to the extent appealed from as limited by the briefs, granted defendant New York City Transit Authority's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion denied and the complaint reinstated as against that defendant only.

Given the allegations in plaintiff's notice of claim, asserting, inter alia, a “leaky” or wet condition in the subject subway stairwell, defendant's proffer, in support of its motion for summary judgment, of plaintiff's statutory hearing testimony that she slipped on something wet on the stairs did not establish, as a matter of law, that defendant lacked notice of the watery condition.   Further, to the extent that the motion court relied on the accident reports that were unaccompanied by affidavits attesting to the preparers' personal knowledge and/or duty to create such reports, that was error (Bendik v. Dybowski, 227 A.D.2d 228, 229, 642 N.Y.S.2d 284 [1996] ).   As such, defendant failed in its initial burden, as movant, to establish, as a matter of law, that it did not create and did not have actual or constructive notice of the watery and hazardous condition of the stairway.