TORTORELLA v. NEW YORK CITY TRANSIT AUTHORITY (2002)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Bruno, J.), dated March 29, 2001, which granted the motion of the defendant New York City Transit Authority for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is reversed, on the law, with costs, the motion is denied, and the complaint insofar as asserted against the defendant New York City Transit Authority is reinstated.

As the appellant walked up the aisle of a bus owned and operated by the defendant New York City Transit Authority (hereinafter the NYCTA) after boarding, she tripped over a folded stroller which was lying across two seats and protruding into the aisle.   The NYCTA demonstrated its prima facie entitlement to summary judgment as a matter of law (see, CPLR 3212[b];  Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).   In opposition, however, the appellant raised a triable issue of fact as to whether the NYCTA, through its agent the bus operator, had actual notice of the dangerous condition before the happening of the accident (see, Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646, 492 N.E.2d 774;  Feuer v. HASC Summer Program, 247 A.D.2d 429, 668 N.Y.S.2d 700).   Accordingly, the Supreme Court erred in granting summary judgment to the NYCTA.