David MaCauley, Respondent, v. New York City Transit Authority, Appellant

David MaCauley, Respondent, v New York City Transit Authority, Appellant. [668 NYS2d 498] [MAJORITY] In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Hutcherson, J.), dated February 20, 1997, which denied its motion for summary judgment dismissing the complaint. Ordered that the order is reversed, on the law, with costs, the defendant’s motion for summary judgment is granted, and the complaint is dismissed. The Supreme Court improperly denied the defendant’s motion for summary judgment dismissing the complaint. The affidavit of the nonparty witness, submitted by the plaintiff in opposition to the motion, was insufficient to establish an issue of fact as to whether the defendant created the allegedly dangerous condition which caused the plaintiff to slip and fall, or had actual or constructive notice thereof (see, Gordon v American Museum of Natural History, 67 NY2d 836). Bracken, J. P., Copertino, Santucci, Florio and McGinity, JJ., concur.