Atwell v New York City Tr. Auth.
2012 NY Slip Op 03088 [94 AD3d 620]
April 24, 2012
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, May 23, 2012


Rosemary Atwell, Respondent,
v
New York City Transit Authority, Appellant, et al., Defendant.

—[*1] Wallace D. Gossett, Brooklyn (Lawrence A. Silver of counsel), for appellant.

Scott Baron & Associates, P.C., Howard Beach (John Burnett of counsel), for respondent.

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered February 17, 2011, which denied defendant New York City Transit Authority's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

While defendant initially established its entitlement to judgment as a matter of law, plaintiff's evidence raises an issue of fact as to whether she appeared to be capable of negotiating the height differential, and thus, whether defendants owed her a duty to kneel the bus (see Trainer v City of New York, 41 AD3d 202 [2007]). Concur—Mazzarelli, J.P., Sweeny, Moskowitz, Abdus-Salaam and Manzanet-Daniels, JJ.