Gordzica v. New York City Transit Authority

Judgment, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered July 18, 2011, upon a jury verdict, awarding plaintiff the principal amount of $1,040,000, unanimously reversed, on the law, without costs, the judgment vacated, and the matter remanded for a new trial.

The court erred in admitting the alleged statement made by defendant’s ticket booth clerk to plaintiff that she had reported the defective condition six times prior to plaintiffs trip and fall. The evidence does not show that the statement was made within the clerk’s authority as a speaking agent on behalf of defendant (see Tyrrell v Wal-Mart Stores, 97 NY2d 650 [2001]; Loschiavo v Port Auth. of N.Y. & N.J., 58 NY2d 1040 [1983]). The error in admitting the statement was not harmless under the circumstances presented. Concur—Tom, J.E, Sweeny, Renwick, AbdusSalaam and Manzanet-Daniels, JJ.