Mark Bethel, Respondent, v. New York City Transit Authority, Doing Business as Manhattan and Bronx Surface Transit Operating Authority, Appellant

Mark Bethel, Respondent, v New York City Transit Authority, Doing Business as Manhattan and Bronx Surface Transit Operating Authority, Appellant. [626 NYS2d 185] [MAJORITY] Order, Supreme Court, New York County (Alfred Toker, J.), entered July 23, 1993, which denied the motion by defendant New York City Transit Authority ("NYCTA”) for summary judgment pursuant to CPLR 3212 dismissing the complaint, unanimously affirmed, without costs. The IAS Court, in this personal injury action, properly denied the motion for summary judgment seeking to dismiss the plaintiffs complaint. The record reveals that NYCTA and the Manhattan and Bronx Surface Transit Operating Authority ("MABSTOA”) should be equitably estopped from denying lack of proper notice, where, as here, their conduct was calculated to, or negligently did, mislead or discourage the plaintiff from serving a timely notice of claim (Fryczynski v Niagara Frontier Transp. Auth., 116 AD2d 979, Iv dismissed 67 NY2d 960). Summary judgment should also be denied because there is a material triable issue of fact, raised by NYCTA’s maintenance records, as to whether defendant NYCTA, rather than MABSTOA, maintained and/or repaired the defective passenger seat on the bus that precipitated the plaintiffs injuries. Concur—Murphy, P. J., Rubin, Williams and Tom, JJ.