Walter Brice v New York City Transit Authority

Brice v New York City Tr. Auth. 2004 NY Slip Op 09414 [13 AD3d 206] December 21, 2004 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 23, 2005

Walter Brice et al., Appellants,
v
New York City Transit Authority, Respondent.

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Order, Supreme Court, New York County (Robert D. Lippmann, J.), entered May 3, 2004, which, in an action for personal injuries sustained in a slip and fall on a stairway in defendant Transit Authority's subway station, denied plaintiffs' cross motion for summary judgment on liability, unanimously affirmed, without costs. Order, same court and Justice, entered May 11, 2004, which denied plaintiffs' motion to strike defendant's answer pursuant to CPLR 3126 but did not address so much of the motion as alternatively sought to compel disclosure pursuant to CPLR 3124, unanimously modified, on the law and the facts, to remand the matter to the motion court for a decision on the CPLR 3124 branch of the motion, and otherwise affirmed, without costs.

Issues of fact exist as to whether, inter alia, the stairway was hazardous, and, if so, whether defendant had notice thereof and a reasonable opportunity after the cessation of precipitation to remedy the hazard (see Laster v Port Auth., 251 AD2d 204, 205 [1998], lv denied 92 NY2d 812 [1998], citing, inter alia, Urena v New York City Tr. Auth., 248 AD2d 377, 378 [1998]). Concerning the disclosure motion, while plaintiffs fail to show the requisite willfulness warranting relief under CPLR 3126, they may be entitled to further disclosure, and we remand for a decision on that aspect of their motion. Concur—Buckley, P.J., Ellerin, Lerner, Marlow and Catterson, JJ.