Opinion
5363 Index 156291/12
01-04-2018
Kathleen BRUNO, Plaintiff–Respondent, v. The PORT AUTHORITY OF NEW YORK and New Jersey, Defendant–Respondent, Hudson Transit Lines, Inc., Defendant–Appellant.
Gallo Vitucci Klar LLP, New York (Kimberly A. Ricciardi of counsel), for appellant. Hannum Feretic Prendergast & Merlino, LLC, New York (William C. Lawlor of counsel), for the Port Authority of New York and New Jersey, respondent. Ephrem J. Wertenteil, New York, for Kathleen Bruno, respondent.
Gallo Vitucci Klar LLP, New York (Kimberly A. Ricciardi of counsel), for appellant.
Hannum Feretic Prendergast & Merlino, LLC, New York (William C. Lawlor of counsel), for the Port Authority of New York and New Jersey, respondent.
Ephrem J. Wertenteil, New York, for Kathleen Bruno, respondent.
Renwick, J.P., Manzanet–Daniels, Gische, Kahn, Singh, JJ.
Order, Supreme Court, New York County (Jennifer G. Schecter, J.), entered on or about April 18, 2016, which, insofar as appealed from, denied defendant Hudson's motion for summary judgment dismissing all claims and cross claims against it, unanimously affirmed, without costs.
Issues of fact exist as to whether Hudson breached its duty as a common carrier to provide plaintiff with a safe place to disembark (see Malawer v. New York City Tr. Auth., 18 A.D.3d 293, 294–295, 795 N.Y.S.2d 201 [1st Dept. 2005], affd 6 N.Y.3d 800, 812 N.Y.S.2d 438, 845 N.E.2d 1268 [2006] ; Conetta v. New York City Tr. Auth., 307 A.D.2d 333, 333, 762 N.Y.S.2d 634 [2d Dept. 2003] ). The record shows that 15 or 20 passengers exited the bus before plaintiff. As she alighted, she stepped into a hole on the sidewalk and fell. The bus driver corroborated this testimony, stating that the hole was on the sidewalk, "[w]ithin one step" of where plaintiff disembarked. The bus driver further admitted that the hole caused plaintiff to fall. Additionally, plaintiff testified that, upon seeing where she fell, the bus driver exclaimed, "[Y]ou fell in that hole, they're supposed to fix that hole." Under the circumstances, where plaintiff stepped into a hole immediately upon alighting from the bus, the fact that a number of passengers safely descended before she did does not entitled Hudson to summary judgment (see Orlick v. Granit Hotel & Country Club, 30 N.Y.2d 246, 250, 331 N.Y.S.2d 651, 282 N.E.2d 610 [1972] ; Noskewicz v. City of New York, 155 A.D.2d 646, 646, 548 N.Y.S.2d 237 [2d Dept. 1989] ).
Issues of fact as to, among other things, whether Hudson breached its contractual duty to notify Port Authority of any needed repairs at the gate where the accident occurred compel denial of summary judgment on Port Authority's contractual indemnification claim.