In Cohen v. City of New York, plaintiff sued the MTA for personal injuries after the subway she had boarded allegedly lurched suddenly causing her to fall. She further alleged the MTA failed to warn her of a wet condition on the train due to a storm. Defendants moved for summary judgment claiming that plaintiff had failed to demonstrate the train left the station in an unusual manner and that the wet condition was open and obvious and not the cause of plaintiff’s fall. The trial court denied defendant’s motion.
On appeal, the First Department reversed the trial court’s decision and granted defendant’s summary judgment motion. The Appellate Court explained that plaintiff failed to testify that the train jerked in an unusual or violent manner. Moreover, even assuming she had, she did not put forth the testimony of any other passengers that would confirm the abnormality of the train’s departure. As such, she raised no triable issue of fact in response to defendant’s summary judgment motion. In addition, the First department disagreed with plaintiff’s liability theory based upon the wet condition. Plaintiff conceded she was aware of the condition, and that such condition had not caused her to fall. Moreover, the First Department found that the storm in progress doctrine applied, which states that while a storm is ongoing there is not an immediate duty to address the wet condition.
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