Garcia v New York City Tr. Auth.

Garcia v New York City Tr. Auth. 2007 NY Slip Op 04222 [40 AD3d 399] May 17, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, July 11, 2007

William Garcia, Appellant,
v
New York City Transit Authority, Respondent.

—[*1] Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac of counsel), for appellant.

Wallace D. Gossett, Brooklyn (Lawrence A. Silver of counsel), for respondent.

Order, Supreme Court, New York County (Robert D. Lippmann, J.), entered March 3, 2006, which, in an action for personal injuries sustained in a fall on stairs leading up to an above-ground subway station, granted defendant Transit Authority's motion for summary judgment dismissing the complaint, and denied plaintiff's cross motion to strike defendant's answer for noncompliance with its disclosure obligations, unanimously modified, on the law, to deny defendant's motion for summary judgment, and otherwise affirmed, without costs.

Plaintiff's complaint and General Municipal Law § 50-h testimony gave fair notice of her claim that defendant's snow removal operations made the stairs more dangerous by piling snow high on both sides of the steps, leaving only a narrow path up the stairs that was covered with a thin, slippery layer of compressed snow, and preventing plaintiff from being able to reach a handrail to stop his fall. Given such a claim, and moving papers that are silent as to defendant's snow removal procedures and whether it performed any snow removal operations earlier on the day of the accident, it does not avail defendant to assert that a storm was in progress at the time of the accident. Assuming a storm was in progress, defendant failed to make a prima facie showing that plaintiff's fall was not caused by a dangerous condition created or exacerbated by any negligence by defendant in performing any earlier, gratuitous snow removal operations (see Rugova v 2199 Holland Ave. Apt. Corp., 272 AD2d 261 [2000]; Prenderville v International Serv. Sys., Inc., 10 AD3d 334, 337-338 [2004]). Concerning plaintiff's cross motion, no basis exists to disturb the motion court's exercise of discretion in deciding defendant's motion for summary judgment before defendant had complied with the court's latest compliance order (CPLR 3214 [b]; see Cantos v Castle Abatement Corp., 251 AD2d 40, 41-42 [1998]). Concur—Saxe, J.P., Friedman, Marlow, Sullivan and McGuire, JJ.