Tisdell v. Metro. Transp. Auth., 2014-07977, Index No. 776/09.

• Decision Date: 11 May 2016
• Docket Number: 2014-07977, Index No. 776/09.
• Citation: 139 A.D.3d 844,30 N.Y.S.3d 701,2016 N.Y. Slip Op. 03732
• Parties: Michael TISDELL, etc., et al., respondents, v. METROPOLITAN TRANSPORTATION AUTHORITY, et al., appellants, et al., defendants.
• Court: New York Supreme Court — Appellate Division

139 A.D.3d 844

30 N.Y.S.3d 701

2016 N.Y. Slip Op. 03732

Michael TISDELL, etc., et al., respondents,

v.METROPOLITAN TRANSPORTATION AUTHORITY, et al., appellants, et al., defendants.

2014-07977, Index No. 776/09.

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

May 11, 2016.

Krez & Flores, LLP, New York, N.Y. (Paul A. Krez of counsel), for appellants.

Herzfeld & Rubin, P.C., New York, N.Y. (Miriam Skolnik, Howard Edinburgh, and Sharyn Rootenberg of counsel), for respondents.

WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, SANDRA L. SGROI, and ROBERT J. MILLER, JJ.

In an action to recover damages for personal injuries and wrongful death, etc., the defendants Metropolitan Transportation Authority and Long Island Rail Road appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Gavrin, J.), entered June 17, 2014, as, upon reargument, denied their motion for summary judgment dismissing the complaint insofar as asserted against them on the merits, which had previously been denied as untimely in an order of the same court dated July 24, 2013.

ORDERED that the order entered June 17, 2014, is reversed insofar as appealed from, on the law, with costs, and, upon reargument, the motion of the defendants Metropolitan Transportation Authority and Long Island Rail Road for summary judgment dismissing the complaint insofar as asserted against them is granted.

Mitchel A. Tisdell (hereinafter the decedent) was struck and killed by an eastbound train operated by the defendant Long Island Rail Road (hereinafter the LIRR) and owned by the defendant Metropolitan Transportation Authority (hereinafter the MTA) while attempting to walk across train tracks at the Stewart Avenue grade crossing located just east of the train station in Bethpage. The decedent, who had been drinking shortly before the incident, had walked to the south side of the crossing to meet his sister. He greeted his sister and then, 14 seconds after a westbound train passed through the crossing, he ducked under or around a lowered pedestrian safety gate and proceeded to walk north across the tracks. He did not first look to see if another train was coming, and proceeded to cross the tracks despite a number of warnings that it was not yet safe to do so, including the lowered pedestrian safety gates, ringing bells, flashing lights, and an announcement repeatedly stating, “Warning, second train coming.” The decedent's sister, who had begun to cross the tracks with the decedent moments earlier, saw the eastbound train approaching the crossing and was able to step back out of the way. The decedent was struck by the train. Toxicological testing revealed that the decedent had a blood alcohol level of 0.12% at the time of his death.

The decedent's mother and sister, and his brother individually and on behalf of the decedent's estate, commenced this action against the MTA and the LIRR (hereinafter together the MTA defendants), among others, seeking damages for the decedent's injuries and death, their loss of the decedent's society and guidance, and the emotional injuries that the decedent's sister suffered from having witnessed the accident. Following discovery, the MTA defendants moved for summary judgment dismissing the complaint insofar as asserted against them, arguing that they were not negligent and that the decedent's own reckless conduct in crossing the tracks was the sole proximate cause of the accident and his resulting death. The Supreme Court initially denied the motion as untimely.

Upon reargument, the court, in effect, vacated its prior determination and, thereupon, denied the motion on the merits.

The MTA defendants correctly contend that they established their prima facie entitlement to judgment as a matter of law by submitting evidence demonstrating that they were not negligent (see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572

). The plaintiffs' speculative assertions in opposition to the motion were insufficient to raise a triable issue of fact. In any event, the MTA defendants also succeeded in demonstrating, as a matter of law, that the decedent's own reckless conduct constituted the sole proximate cause of his death. Indeed, an injured party's own reckless and extraordinary conduct can constitute “an intervening and superseding event which severs any causal nexus between the occurrence of the accident and any alleged negligence on the part of the defendants” (Lynch v. Metropolitan Transp. Auth., 82 A.D.3d 716, 717, 917 N.Y.S.2d 685 ; see

Kush v. City of Buffalo, 59 N.Y.2d 26, 33, 462 N.Y.S.2d 831, 449 N.E.2d 725 ; Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 315, 434 N.Y.S.2d 166, 414 N.E.2d 666 ; Dumbadze v. Schwatt, 291 A.D.2d 529, 529, 739 N.Y.S.2d 399 ). To qualify as the...