Mojica v. Metro-North Commuter R.R. Co. , 995 N.Y.S.2d 53 ( 2014 )

Mojica v Metro-North Commuter R.R. Co. (2014 NY Slip Op 07308)

Mojica v Metro-North Commuter R.R. Co.

2014 NY Slip Op 07308

Decided on October 28, 2014

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 28, 2014
Friedman, J.P., Renwick, Manzanet-Daniels, Feinman, Kapnick, JJ.

13335 109805/11

[*1] Lydia Mojica, Plaintiff-Respondent,

v

Metro-North Commuter Railroad Company, Defendant-Appellant, Metropolitan Transportation Authority, et al., Defendants.

Landman Corsi Ballaine & Ford P.C., New York (William G. Ballaine of counsel), for appellant.

Seiden & Kaufman, Carle Place (Steven J. Seiden of counsel), for respondent.

Order, Supreme Court, New York County (Kathryn E. Freed, J.), entered October 21, 2013, which, insofar as appealed from, denied the motion of defendant Metro-North Commuter Railroad Company (Metro North) for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

Metro North did not establish its entitlement to judgment as a matter of law, in this action where plaintiff was injured when she allegedly slipped and fell on a patch of ice located inside a pedestrian tunnel underneath the railroad overpass owned and maintained by Metro North. The evidence submitted by Metro North failed to demonstrate that it lacked actual or constructive notice of the hazardous icy condition. Indeed, Metro North's annual inspection reports since the summer of 2008 show that it was aware that precipitation would result in water seeping through the overpass and leaking into the tunnel from the ceiling and walls. Accordingly, a jury could conclude that the allegedly negligent maintenance of the structure by Metro North caused the [*2]condition at issue (see Lebron v Napa Realty Corp., 65 AD3d 436 [1st Dept 2009]).

We have considered Metro North's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 28, 2014

CLERK