| Barco v Green Bus Lines, Inc. |
| 2009 NY Slip Op 04175 [62 AD3d 923] |
| May 26, 2009 |
| Appellate Division, Second Department |
| Maria Barco, Appellant, v Green Bus Lines, Inc.,Respondent, et al., Defendant. |
—[*1] Fiedelman & McGaw, Jericho, N.Y. (Andrew Zajac of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Queens County (Cullen, J.), dated March 7, 2008, which granted the motionof the defendant Green Bus Lines, Inc., for summary judgment dismissing the complaint insofaras asserted against it.
Ordered that the order is reversed, on the law, with costs, and the motion for summaryjudgment dismissing the complaint insofar as asserted against the respondent is denied.
The plaintiff Maria Barco allegedly was injured when she slipped and fell on a wet floor inthe aisle of a bus. The plaintiff commenced the instant action to recover damages for personalinjuries alleging, inter alia, that the defendant Green Lines Bus, Inc. (hereinafter Green Bus),negligently maintained the bus.
Green Bus moved for summary judgment dismissing the complaint insofar as assertedagainst it based upon the plaintiff's deposition testimony and the deposition testimony of the busdriver. At her deposition, the plaintiff was asked, "After the accident, did you make anyobservations about the aisle where you slipped?" and she replied "No." However, when asked ifshe saw anything on the floor, she responded "Yes, it was all wet." When asked how much of thefloor was wet, she stated that "it was all wet." In his deposition, the bus driver testified that theaccident occurred on the first run of the day, after the bus had been cleaned, and the floor wasclean and dry.
In opposition, the plaintiff submitted her personal affidavit stating that after she fell, sheexamined the condition of the aisle and noted that the aisle was uniformly wet along the entirelength of the aisle "just as if it had been mopped." She further stated that she could see mopstreaks and the floor smelled like it had just been cleaned.
The Supreme Court granted Green Bus's motion finding, inter alia, that the plaintiff'saffidavit in opposition presented a feigned factual issue.
There are triable issues of fact which preclude the granting of summary judgment (see[*2]Zuckerman v City of New York, 49 NY2d 557 [1980]).Contrary to Green Bus's contention, the statements in the plaintiff's affidavit are consistent withher prior deposition testimony that the aisle was "all wet," and therefore do not create a feignedfactual issue (see Enamorado v KHRHolding Co., LLC, 24 AD3d 411 [2005]).
Green Bus's remaining contentions are either unpreserved for appellate review or withoutmerit. Rivera, J.P., Santucci, Chambers and Hall, JJ., concur.