Nereida Santiago, Plaintiff-Respondent, v. New York City Transit Authority, Defendant-Appellant.

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

Nereida Santiago, Plaintiff-Respondent, v. New York City Transit Authority, Defendant-Appellant.

1754

Decided: January 28, 2010

Friedman, J.P., Sweeny, Freedman, Abdus-Salaam, JJ. Wallace D. Gossett, Brooklyn (Anita Isola of counsel), for appellant. Laurence M. Savedoff, P.L.L.C., Bronx (Laurence M. Savedoff of counsel), for respondent.

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Order, Supreme Court, Bronx County (Edgar G. Walker, J.), entered June 13, 2008, which, insofar as appealed from, denied defendant's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted.   The Clerk is directed to enter judgment accordingly.

Plaintiff, who was injured when she stumbled upon boarding a bus, claims that the bus operator was negligent in failing to lower the bus platform for her.   The record establishes, however, that, before boarding, plaintiff (then 57 years old) did not ask the operator to lower the platform, and that she did not appear unable to negotiate the height differential between the curb and the bus platform.   Under these circumstances, there was no duty to lower the platform (see Trainer v. City of New York, 41 AD3d 202 [2007] [where disembarking 77-year-old passenger neither “request(ed) that the bus be lowered” nor “appeared incapable of negotiating the distance” between the bus and the street, “there was no duty to lower the (bus's) steps”];  see also Sabella v. City of New York, 58 AD3d 712 [2009];  Carlino v. Triboro Coach Corp., 22 AD3d 624 [2005] ).   In view of the foregoing, any discrepancy between plaintiff's testimony and that of the bus operator concerning the height differential between the curb and the platform is immaterial.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK