TORRES v. NEW YORK CITY TRANSIT AUTHORITY (2010)

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered October 26, 2009, which granted defendant's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion denied and the complaint reinstated.

Plaintiff alleges that, while riding a bus in the Bronx operated by defendant, she slipped and fell on an oily substance on the floor. The court erred in granting defendant's motion for summary judgment because defendant failed to satisfy its burden of making a prima facie showing of entitlement to summary judgment upon the basis that it lacked actual or constructive notice of the alleged hazard (see Castillo v. New York City Tr. Auth., 69 A.D.3d 487, 891 N.Y.S.2d 645 [2010];  Moser v. BP/CG Ctr. I, LLC, 56 A.D.3d 323, 866 N.Y.S.2d 869 [2008];  Baptiste v. 1626 Meat Corp., 45 A.D.3d 259, 844 N.Y.S.2d 271 [2007].   Defendant failed to demonstrate that the driver that it produced for an EBT was the driver of the bus in question.   Even if the witness produced actually was the driver, he provided no details regarding when the bus was last checked for defects on the day of the accident(see Moser, 56 A.D.3d at 323, 866 N.Y.S.2d 869), and his testimony as to general procedures for bus inspection was insufficient for summary judgment purposes (see Baptiste, 45 A.D.3d at 259, 844 N.Y.S.2d 271).   Finally, plaintiff's testimony directly controverts that of the defendant's witness, creating issues of fact that preclude summary judgment.