McMILLAN v. NEW YORK CITY TRANSIT AUTHORITY (2007)

Supreme Court, Appellate Division, Second Department, New York.

Sandra McMILLAN, respondent, v. NEW YORK CITY TRANSIT AUTHORITY, appellant.

Decided: March 06, 2007

HOWARD MILLER, J.P., ROBERT W. SCHMIDT, DAVID S. RITTER, and DANIEL D. ANGIOLILLO, JJ.

Wallace D. Gossett (Lawrence Heisler and Steven Efron, New York, N.Y., of counsel), for appellant. Sonkin, Fifer & Gershon, New York, N.Y. (Howard Fifer of counsel), for respondent.

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Solomon, J.), entered December 16, 2005, which denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The defendant established its entitlement to judgment as a matter of law, thereby shifting the burden to the plaintiff to submit admissible evidence raising a triable issue of fact (see Ferrante v. American Lung Assn., 90 N.Y.2d 623, 665 N.Y.S.2d 25, 687 N.E.2d 1308). In opposition to the defendant's motion, the plaintiff submitted admissible evidence raising a triable issue of fact as to the size of the gap between the subway station platform and the train door where she fell and whether the existence of such a gap constituted negligence on the part of the defendant (id.; cf. Yarde v. New York City Tr. Auth., 4 A.D.3d 352, 771 N.Y.S.2d 185). Accordingly, the Supreme Court properly denied the defendant's motion for summary judgment.

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