Pagan v. Metropolitan Transportation Authority

Order, Supreme Court, New York County (Michael D. Stall-man, J.), entered August 1, 2012, which, in this personal injury action arising from plaintiffs alleged slip and fall on water on the floor of defendant Metro-North Railroad’s train, to the extent appealed from, denied defendant’s motion for summary judgment, unanimously affirmed, without costs. An issue of fact exists as to whether defendant’s employee created the alleged hazardous condition by leaving an end door open, allowing rainwater to enter the subject car. Under the circumstances, the fact that it was raining at the time of the incident is not a defense to liability (see Cook v Rezende, 32 NY2d 596, 599 [1973]). Defendants failed to preserve their contention that plaintiffs affidavit submitted in opposition to their motion created a feigned issue of fact. In any event, the motion court properly considered the affidavit because it does not contradict plaintiffs prior testimony, but rather amplifies it (see Castro v New York City Tr. Auth., 52 AD3d 213, 214 [1st Dept 2008]). Concur—Gonzalez, EJ., Mazzarelli, Moskowitz, Renwick and Manzanet-Daniels, JJ.