Haberlin v. New York City Transit Authority

—Order, Supreme Court, New York County (Robert Lippmann, J.), entered November 23, 1993, which denied defendant New York City Transit Authority’s ("NYCTA”) motion for summary judgment dismissing the complaint and ordered an examination before trial of its employee, unanimously affirmed, without costs.

There is a question of fact as to the precise location of plaintiff’s accident and the condition of the location, which may be within the knowledge of the NYCTA employee who was present at the time of the occurrence even though she did not witness it. . Under these circumstances, summary judgment is. premature and the plaintiff should be allowed to examine the NYCTA employee. Concur—Sullivan, J. P., Rosenberger, Wallach and Asch, JJ.