Mirjah v. New York City Transit Authority

• Decision Date: 26 February 2008
• Docket Number: 2006-10120.
• Citation: Mirjah v. New York City Transit Authority, 48 A.D.3d 764, 853 N.Y.S.2d 148, 2008 NY Slip Op 1722 (N.Y. App. Div. 2008)
• Parties: DE'RON MIRJAH, Respondent, v. NEW YORK CITY TRANSIT AUTHORITY, Appellant.
• Court: New York Supreme Court — Appellate Division

48 A.D.3d 764

853 N.Y.S.2d 148

2008 NY Slip Op 01722

DE'RON MIRJAH, Respondent, v. NEW YORK CITY TRANSIT AUTHORITY, Appellant.

2006-10120.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided February 26, 2008.

In an action to recover damages for wrongful death and personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Solomon, J.), dated September 20, 2006, which denied its motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, and the motion for summary judgment dismissing the complaint is granted.

The plaintiff commenced this action, inter alia, to recover damages for wrongful death after the decedent was struck and killed by a subway train in the early morning hours of July 15, 2000 at the Parkside Avenue station in Brooklyn. The defendant moved for summary judgment dismissing the complaint. The Supreme Court denied the motion. We reverse.

A train operator may be found negligent if he or she sees a person on the tracks "from such a distance and under such other circumstances as to permit him [or her], in the exercise of reasonable care, to stop before striking the person," but does not do so (Coleman v New York City Tr. Auth., 37 NY2d 137, 140 [1975]; see Soto v New York City Tr. Auth., 6 NY3d 487 [2006]). Here, the defendant demonstrated, prima facie, that the train operator was not negligent in the happening of the decedent's death.

In support of its motion, the defendant presented, inter alia, the deposition testimony of the train operator Gary Ferreira. Ferreira's testimony may be summarized as follows: It was raining at the time in question, and the windshield wipers and lights on the train were activated. As he entered a bend before the Parkside Avenue station, Ferreira slowed the train by putting the throttle controller into "coast" mode and giving a "nip of brake." As he was about to enter the station, Ferreira observed a person (the decedent) sitting in the middle of the train tracks, facing the oncoming train, "about" two car lengths ahead. Ferreira "immediately put the train in emergency" by taking his left hand off of the throttle controller, thereby activating the "deadman's feature," and "simultaneously" placing the emergency brake in "full service" mode with his right hand. The deadman's feature automatically engages in the train's braking system. However, the train continued to move and the decedent disappeared under the train. Ferreira called for help and then exited the train. The decedent was discovered under one of the cars of the train. An autopsy report listed the cause of death as multiple blunt impact injuries, and the manner of death as suicide. The certificate of death listed the manner of death as "undetermined." The autopsy report also noted that the decedent had a blood alcohol level of .24%, which was...