| Barrett v New York City Tr. Auth. |
| 2011 NY Slip Op 00171 [80 AD3d 550] |
| January 11, 2011 |
| Appellate Division, Second Department |
| Pauline Barrett, Appellant, v New York City Transit Authority etal., Respondents. |
—[*1] Wallace D. Gossett, Brooklyn, N.Y. (Anita Isola of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of theSupreme Court, Kings County (Velasquez, J.), dated September 9, 2009, which granted thedefendants' motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendants' motion for summaryjudgment dismissing the complaint is denied.
The Supreme Court should have denied the defendants' motion for summary judgment dismissingthe complaint since the defendants failed to submit evidence sufficient to establish that they did notcreate or have actual or constructive notice of the alleged hazardous condition in the rear stairwell oftheir bus (see Simpson v City of New YorkTr. Auth., 44 AD3d 930 [2007]; Petty v Harran Transp. Co., 300 AD2d 290[2002]). Material inconsistencies between the deposition testimony of the bus driver and the GeneralMunicipal Law § 50-h hearing testimony and the deposition testimony of the plaintiff raised issuesof credibility which must be resolved by the trier of fact (see generally Lawson v Rutland Nursing Home, Inc., 65 AD3d 572[2009]; Tunison v D.J. Stapleton, Inc.,43 AD3d 910 [2007]; Kolivas vKirchoff, 14 AD3d 493 [2005]). Since the defendants failed to meet their initial burden as themovants, we need not review the sufficiency of the plaintiff's opposition papers (see Winegrad vNew York Univ. Med. Ctr., 64 NY2d 851 [1985]).
The plaintiff's contention that the defendants' appellate brief was untimely filed is not properlybefore this Court, as she did not move to strike the defendants' brief. Dickerson, J.P., Hall, Austin andCohen, JJ., concur.