Kathleen Motto v New York City Transit Authority

Motto v New York City Tr. Auth. 2004 NY Slip Op 09369 [13 AD3d 170] December 16, 2004 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 23, 2005

Kathleen Motto, Appellant,
v
New York City Transit Authority, Respondent.

—[*1]

Order, Supreme Court, New York County (Robert D. Lippmann, J.), entered November 28, 2003, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Although there were no witnesses to the accident, the circumstantial evidence indicates that plaintiff's decedent died when he fell from between cars of a moving subway train. Although plaintiff attributes the decedent's fall to defendant's failure to take adequate safety precautions to protect passengers moving between cars, the cause of the decedent's fall is on this record a matter for pure speculation and, accordingly, no triable issue has been raised as to whether responsibility for the fall and its sequelae may be placed upon defendant or its employees (see Thomas v New York City Tr. Auth., 194 AD2d 663, 664 [1993]). Concur—Buckley, P.J., Lerner, Friedman, Sweeny and Catterson, JJ.