Cruz v. New York City Transit Authority

• Decision Date: 01 February 1993
• Parties: Robert CRUZ, et al., Respondents, v. NEW YORK CITY TRANSIT AUTHORITY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 69

593 N.Y.S.2d 69

190 A.D.2d 651

Robert CRUZ, et al., Respondents, v. NEW YORK CITY TRANSIT AUTHORITY, Appellant.

Supreme Court, Appellate Division,

Second Department.

Feb. 1, 1993.

Albert C. Cosenza, Brooklyn (Lawrence Heisler and Lawrence A. Silver, of counsel), for appellant.

Hoberman & Sussman, P.C., Brooklyn (Owen O. Hoberman and Samuel J. Sussman, of counsel), for respondents.

Before BALLETTA, J.P., and ROSENBLATT, MILLER and PIZZUTO, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injuries, etc., the defendant appeals from a judgment of the Supreme Court, Queens County (Durante, J.), entered March 12, 1990, which, upon a jury verdict, is in favor of the plaintiff Robert Cruz in the sum of $2,545,551.91, and in favor of the plaintiff Zayda Rivera in the sum of $115,320.76.

ORDERED that the judgment is reversed, on the law, without costs or disbursements, and the complaint is dismissed.

The plaintiff Robert Cruz was injured as a result of a fall from the landing of a stairway leading from a public sidewalk to an elevated train station owned and operated by the defendant New York City Transit Authority (hereinafter the TA). As Cruz was ascending the northeast stairway of the Elderts Lane station of the elevated "J" line above Jamaica Avenue in Queens, he paused on a landing to permit a group of youths running up the stairs behind him to pass. Allegedly to avoid contact with the individuals, who were running to catch a train that was pulling into the station, Cruz hoisted himself atop the horizontal railing running parallel to and enclosing the stairway landing. As he did so the passing youths brushed against Cruz's legs, causing him to lose his balance. He fell backward, over the railing, to the sidewalk, which was approximately 10 feet 8 inches below. The railing from which Cruz fell was 44 inches above the floor of the landing. As a result of his fall, Cruz was rendered quadriplegic. The jury found him 60% at fault in the happening of the accident and the TA 40% at fault.

Upon the first trial of this action, the court awarded the TA judgment as a matter of law following the close of the plaintiffs' case. On appeal, this court reversed, holding that certain evidentiary rulings of the trial court had been erroneous and that the plaintiffs had made out a prima facie case of negligence (see, Cruz v. New York City Tr. Auth., 136 A.D.2d 196, 526 N.Y.S.2d 827). We held that the trial court erred in precluding the plaintiffs' expert from testifying regarding whether certain features in the design of railings had been implemented either at the elevated subway station in question, or at other elevated subway stations within the city, including those within close proximity to the station in question. We also concluded that the trial court erred in precluding the plaintiffs from adducing testimony from their expert pertaining to the design and construction of exterior stairways at other elevated subway stations in the city, including those in close proximity to the scene of the accident, and that the plaintiffs should have been allowed to establish that there existed an accepted practice with respect to railing design both at the elevated station in question and on similar exterior stairways at other elevated stations in the city (Cruz v. New York City Tr. Auth., supra, at 199-200, 526 N.Y.S.2d 827).

In reversing, we were careful to state that we were taking no view regarding the ultimate determination as to liability. Now, with the benefit of the full record of the second trial, at which the plaintiffs were permitted to develop the evidence improperly precluded at the first trial, and at which the TA had the opportunity to present evidence for its side, we conclude that the plaintiffs have not established the necessary elements for a finding of any liability against the TA. Accordingly, we reverse the judgment and dismiss the complaint.

On the full record before us, the plaintiffs attempted to establish that the TA was negligent in the design, construction and maintenance, of the landing and railing from which Robert Cruz fell. The plaintiffs presented testimony from two expert witnesses. At the second trial, James Howie, a licensed architect, acknowledged that the 44-inch-high horizontal landing railing complied with "minimum City Code requirements". He opined, however, that in light of the proximity of this train station to nearby Franklin K. Lane High School, the stairway in question "[i]deally * * * should have had some sort of protection from the possibility of someone falling over the railing." Mr. Howie postulated that the railing should have been higher, at least 48 inches from the floor of the landing, or that it should have been topped with protruding spikes or...