AGUILA v. NEW YORK CITY TRANSIT AUTHORITY

Appellate Division of the Supreme Court of New York, Second Department.

Dec 29, 2003

Judgment

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DECISION ORDER

ORDERED that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated.

Contrary to the defendants' contention, after they made out a prima facie case for summary judgment, the plaintiff Elipidio Agulia's testimony at his deposition and at the hearing pursuant to General Municipal Law § 50-h, together with the submitted medical evidence of his injuries, raised a triable issue of fact as to the bus driver's negligence ( see Jenkins v. Westchester County, 278 A.D.2d 370; Lebreton v. New York City Tr. Auth., 267 A.D.2d 211; see also Urquhart v. New York City Tr. Auth., 85 N.Y.2d 828; cf. Curley-Concepcion v. New York City Tr. Auth., 276 A.D.2d 463) . Accordingly, the defendants' motion should have been denied.

SMITH, J.P., LUCIANO, H. MILLER and TOWNES, JJ., concur.