Caliendo v. Spero , 509 N.Y.S.2d 424 ( 1986 )

— In consolidated actions to recover damages for wrongful death and conscious pain and suffering, the defendant New York City Transit Authority (hereinafter the TA) appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Rader, J.), dated January 13, 1986, as denied its motion for summary judgment dismissing the complaints as against it.

Ordered that the order is affirmed insofar as appealed from, with one bill of costs to the respondents appearing separately and filing separate briefs.

Special Term properly denied the TA’s motion for summary judgment. There exist material questions of fact with respect to the plaintiffs’ contention that the TA was responsible for the maintenance of the surface street tracks allegedly contributing to the death of plaintiffs’ decedents. Moreover, there also remain questions of fact as to whether the elevated subway tracks above the location of the accident caused an unreasonably dangerous condition on the road below. It is undisputed that the TA owned and controlled these overhead tracks. Weinstein, J. P., Rubin, Kooper and Sullivan, JJ., concur.