VILMA GRANT, plf-ap, v. THE NEW YORK CITY TRANSIT AUTHORITY def-res

9211. VILMA GRANT, plf-ap, v. THE NEW YORK CITY TRANSIT AUTHORITY def-res — Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac of counsel), for ap — Wallace D. Gossett, Brooklyn (Lawrence Heisler of counsel), for res — Judgment, Supreme Court, Bronx County (Julia Rodriguez, J.), entered September 28, 2011, upon a jury verdict, dismissing the complaint, unanimously reversed, on the law, without costs, the judgment vacated, the complaint reinstated and the matter remanded for a new trial.

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9211. VILMA GRANT, plf-ap, v. THE NEW YORK CITY TRANSIT AUTHORITY def-res — Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac of counsel), for ap — Wallace D. Gossett, Brooklyn (Lawrence Heisler of counsel), for res — Judgment, Supreme Court, Bronx County (Julia Rodriguez, J.), entered September 28, 2011, upon a jury verdict, dismissing the complaint, unanimously reversed, on the law, without costs, the judgment vacated, the complaint reinstated and the matter remanded for a new trial.

Plaintiff commenced this action against defendant New York City Transit Authority and the City of New York (collectively NYCTA) to recover damages for a fractured ankle she allegedly sustained in 2007 while descending the platform stairs at a subway station in the Bronx. At trial plaintiff testified that as she was descending the stairs, she “stepped on something very hard” which caused her to fall. After her fall, plaintiff noticed a metal bracket protruding from the step where she had fallen. Plaintiff contends that the metal bracket constituted a dangerous condition which caused her to fall, and that NYCTA was negligent in allowing the metal bracket to exist on the stairway. NYCTA denied the allegations, and argued at trial that it had rained on the day of plaintiff’s accident, which caused plaintiff to fall, and that the fall was not due to the protruding metal bracket as plaintiff testified. To support its position, the NYCTA called as a witness the orthopedic surgeon who examined plaintiff after her accident. The doctor testified, solely based on his hospital notes, and over plaintiff’s objection, that when he examined plaintiff, she told him that she sustained a “slip and fall on wet ground.” After the trial, the jury rendered a verdict in NYCTA’s favor. Plaintiff now appeals, arguing, among other things, that the doctor’s testimony that plaintiff told him that she slipped on a wet surface should have been precluded. We agree.

VILMA GRANT, plf-ap, v. THE NEW YORK CITY TRANSIT AUTHORITY def-res

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