Nelson v. N.Y.C. Transit Auth.

• Decision Date: 27 March 2019
• Docket Number: Index No. 10899/12,2016–09512
• Citation: Nelson v. N.Y.C. Transit Auth., 170 A.D.3d 1184, 96 N.Y.S.3d 342 (N.Y. App. Div. 2019)
• Parties: Marva NELSON, etc., Appellant, v. NEW YORK CITY TRANSIT AUTHORITY, et al., Respondents, "John Doe," etc., Defendant.
• Court: New York Supreme Court — Appellate Division

170 A.D.3d 1184

96 N.Y.S.3d 342

Marva NELSON, etc., Appellant,

v.NEW YORK CITY TRANSIT AUTHORITY, et al., Respondents,"John Doe," etc., Defendant.

2016–09512

Index No. 10899/12

Supreme Court, Appellate Division, Second Department, New York.

Argued - December 3, 2018

March 27, 2019

Roger V. Archibald, PLLC, Brooklyn, N.Y. (Leonard W. Stewart of counsel), for appellant.

Lawrence Heisler, Brooklyn, N.Y. (Timothy J. O'Shaughnessy of counsel), for respondents.

MARK C. DILLON, J.P., CHERYL E. CHAMBERS, VALERIE BRATHWAITE NELSON, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

ORDERED that the order is affirmed insofar as appealed from, with costs.

On November 19, 2011, in the tunnel between the Flatbush Avenue and Newkirk Avenue subway stations in Brooklyn, Brian Marc Rowe (hereinafter the decedent), who had jumped onto the subway tracks, was struck and killed by a subway train operated by the defendant New York City Transit Authority (hereinafter NYCTA) and owned by the defendant Metropolitan Transportation Authority (hereinafter together the defendants). On May 24, 2012, Marva Nelson, as the administrator of the decedent's estate (hereinafter the plaintiff), commenced this action to recover damages for negligence and wrongful death. After discovery, the defendants moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against them. The Supreme Court granted that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against them. The plaintiff appeals.

We agree with the Supreme Court's determination granting that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against them. The defendants established their prima facie entitlement to judgment as a matter of law by submitting evidence demonstrating that they were not negligent and that the accident was unavoidable (see Weimar v. Metropolitan Transp. Auth., 147 A.D.3d 1111, 1112, 48 N.Y.S.3d 240 ; see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ). In support of their motion, the defendants submitted evidence, including the deposition testimony of a NYCTA train service supervisor and the affidavits of eyewitnesses who observed the decedent jump off the platform and walk southbound into the tunnel, which demonstrated that the operator of the train which struck the decedent exercised reasonable care and that the accident was unavoidable under the circumstances (see Neenan v. Quinton, 110 A.D.3d 967, 974 N.Y.S.2d 73 ). The defendants also submitted evidence demonstrating that they were not negligent in their search for the decedent. In an affidavit, a NYCTA general superintendent described the general protocols followed by the NYCTA in response to a report of an unauthorized person on the tracks, including that a search for the person is to be assigned to the New York City Police Department (hereinafter NYPD) and that all trains in the reported area are to proceed at a "restricted speed with extreme caution." The general superintendent averred that these protocols were followed after the decedent was observed on the tracks. In addition, according to the deposition testimony of a NYPD officer, upon responding to a report of an unauthorized person on the tracks, the officer rode on a southbound train from Newkirk Avenue to Flatbush Avenue and then on a northbound train from Flatbush Avenue to Newkirk Avenue in search of an individual on the tracks, but did not locate the decedent. During the search, the trains traveled slowly, and the officer observed other police officers in the tunnel looking for someone on the tracks.

Furthermore, the defendants established as a matter of law that the decedent's conduct constituted an intervening and superseding cause which severed "any causal nexus between the occurrence of the accident and any alleged negligence on the part of the defendants" ( Lynch v....