Pemberton v. New York City Transit Authority

In Pemberton v. New York City Transit Authority, 304 AD2d 340 (1st Dep't 2003) the plaintiff's right leg fell into a gap up to the middle of his thigh as he was stepping off the train to allow other passengers to exit. Measurements taken by the Transit Authority showed a horizontal gap of 4.75 inches prior to the accident and a gap of six inches after the accident. Plaintiff's expert's measurements showed a gap of at least 6.7 inches. In denying the defendant's motion for summary judgment, the First Department held that the difference in these measurements was sufficient to raise an issue of fact as to the size of the gap and whether it constituted an unsafe condition.