Walker v. Gray Line New York , 150 A.D.3d 420 ( 2017 )

Walker v Gray Line N.Y. (2017 NY Slip Op 03603)

Walker v Gray Line N.Y.

2017 NY Slip Op 03603

Decided on May 4, 2017

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 4, 2017
Sweeny, J.P., Gische, Kahn, Gesmer, JJ.

3890 158775/13

[*1]Myron Kirk Walker, Plaintiff-Respondent,

v

Gray Line New York, Defendant-Appellant.

Gallo Vitucci Klar LLP, New York (Mary L. Maloney of counsel), for appellant.

Becker & D'Agostino, P.C., New York (Michael D'Agostino of counsel), for respondent.

Order, Supreme Court, New York County (Leticia M. Ramirez, J.), entered December 9, 2016, which denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendant failed to establish entitlement to judgment as a matter of law in this action where plaintiff alleges that he was struck by defendant's red double decker tour bus that had the words "Gray Line" on the side. Defendant's submissions did not demonstrate that the bus that struck plaintiff was not a Gray Line bus (see Jiann Hwa Fang v Metropolitan Transp. Auth., AD3d, 2017 NY Slip Op 01681 [2d Dept 2017]). In fact, defendant's submissions included plaintiff's deposition testimony and photographs of its buses that correspond with the description provided by plaintiff at his deposition.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 4, 2017

CLERK