Atwell v. New York City Transit Auth.

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 *352 her a duty to kneel the bus ( see Trainer v. City of New York, 41 A.D.3d 202, 838 N.Y.S.2d 512 [2007] ).

MAZZARELLI, J.P., SWEENY, MOSKOWITZ, ABDUS–SALAAM, MANZANET–DANIELS, JJ., concur.