Badou v. New Jersey Transit Rail Operations

Decision Date06 November 1995
Citation633 N.Y.S.2d 530,221 A.D.2d 303
PartiesMichel BADOU, as Administrator of the Estate of Josette Medorzil, also Known as Josette Badou, Deceased, Appellant, v. NEW JERSEY TRANSIT RAIL OPERATIONS, et al., Defendants, McDonald's Corporation, et al., Respondents.
CourtNew York Supreme Court — Appellate Division

Schurr & Burns, P.C., Spring Valley (Richard Owen Burns, of counsel), for appellant.

Gerald G. Cowen, Elmsford, for respondents.

Before RITTER, J.P., and COPERTINO, PIZZUTO and KRAUSMAN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for wrongful death, the plaintiff appeals from an order of the Supreme Court, Rockland County (Weiner, J.), dated April 26, 1994, which granted the motion of the defendants Lenjen Corp., JME Valley, Inc., and Jan Mitchell for summary judgment dismissing the complaint insofar as asserted against them, and, in effect, upon searching the record granted summary judgment in favor of the defendant McDonald's Corporation, dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed; and it is further,

ORDERED that, upon searching the record, summary judgment is granted in favor of the defendant Franchise Realty Interstate Corporation, the complaint is dismissed insofar as asserted against it and the action against the remaining defendants is severed; and it is further,

ORDERED that the respondents are awarded one bill of costs.

On the morning of March 27, 1989, the plaintiff's decedent, Josette Medorzil, was struck and killed by a New Jersey Transit Rail Operations commuter train. The decedent was on her way from her Spring Valley home to a bus stop on Route 59 when the accident occurred. According to the plaintiff, on the morning of the accident it appears that the decedent decided to take a shortcut which required her to cross the railroad tracks and then walk through a hole in the gate of a chain link fence which divided the railroad's property from the rear of a McDonald's restaurant. The plaintiff alleges that a well traveled foot path led from the railroad's property to the rear of the McDonald's, and that the decedent took this path only because the hole in the fence separating the two properties created a viable shortcut to Route 59.

Following the accident, the plaintiff, as administrator of the decedent's estate, commenced this action, inter alia, against McDonald's Corporation, Lenjen Corp., JME Valley, Inc., Jan Mitchell, and Franchise Realty Interstate Corporation, asserting that these parties had an ownership interest or were otherwise responsible for the maintenance of the two parcels of property upon which the McDonald's Restaurant and its parking lot were situated. The defendants Lenjen Corp., JME Valley, Inc., and Jan Mitchell subsequently moved for summary judgment, contending that they owed no duty of care to the decedent because she was struck by a train while on the railroad's property, and there was no evidence that she intended to enter the McDonald's property. The Supreme Court agreed that an adjoining property owner could not be held liable under these circumstances, and awarded summary judgment both to the movants and to the McDonald's Corporation, which had not joined the motion.

On appeal, the plaintiff contends that the court erred in awarding summary judgment to the moving defendants because it was foreseeable that an accident could occur on the railroad tracks while an individual was utilizing the path that led across the tracks and through their property to Route 59. However, it is fundamental that "a duty of reasonable care owed by the tort-feasor * * * is elemental to any recovery...

To continue reading

Request your trial
4 cases
  • Calhoun v. Belt Ry. Co. of Chicago
    • United States
    • United States Appellate Court of Illinois
    • May 31, 2000
    ...duty to fence its property so as to protect minor tenant from dangers of canal on adjoining land); Badou v. New Jersey Transit Rail Operations, 221 A.D.2d 303, 633 N.Y.S.2d 530, 532 (1995) (landowner owed no duty to warn or protect another crossing property of neighboring railroad); Mair v.......
  • Cardinal v. Long Island Power Authority
    • United States
    • U.S. District Court — Eastern District of New York
    • March 10, 2004
    ...City of New York, 261 A.D.2d 506, 507, 692 N.Y.S.2d 397 (N.Y.App. Div., 2d Dep't 1999); Badou v. New Jersey Transit Rail Operations, 221 A.D.2d 303, 304, 633 N.Y.S.2d 530 (N.Y.App. Div., 2d Dep't 1995); Pensabene v. Inc. Vill. of Valley Stream, 202 A.D.2d 486, 486, 609 N.Y.S.2d 75 (N.Y.App.......
  • Martino v. Stolzman
    • United States
    • New York Supreme Court — Appellate Division
    • June 11, 2010
    ...in fixing the orbit of duty, of limiting the legal consequences of wrongs to a controllable degree" ( Badou v. New Jersey Tr. Rail Operations, 221 A.D.2d 303, 304, 633 N.Y.S.2d 530 [internal quotation marks omitted]; see Clementoni v. Consolidated Rail Corp., 30 A.D.3d 986, 987, 817 N.Y.S.2......
  • Baez v. Long Island Railroad
    • United States
    • New York Supreme Court — Appellate Division
    • February 2, 1998
    ...Ilardi which was for summary judgment dismissing the appellant's cross claims asserted against her (see, Badou v. New Jersey Tr. Rail Operations, 221 A.D.2d 303, 633 N.Y.S.2d 530; Pensabene v. Incorporated Vil. of Val. Stream, 202 A.D.2d 486, 609 N.Y.S.2d MILLER, J.P., and RITTER, SULLIVAN,......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT