Stanley v New York City Tr. Auth.

Stanley v New York City Tr. Auth. 2007 NY Slip Op 09386 [45 AD3d 832] November 27, 2007 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 16, 2008

Michael Stanley, Respondent,
v
New York City Transit Authority, Appellant.

—[*1] Wallace D. Gossett (Steve S. Efron, New York, N.Y., of counsel), for appellant.

Gary B. Pillersdorf (Pollack, Pollack, Isaac & De Cicco, New York, N.Y. [Brian J. Isaac, Diane K. Toner, and Jillian Rosen of counsel), for respondent.

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Solomon, J.), dated June 23, 2006, which denied its motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The plaintiff allegedly became ill, blacked out, fell onto the tracks of an elevated subway station in Brooklyn, and was struck by a train entering the station.

The defendant met its initial burden on its motion for summary judgment dismissing the complaint by submitting evidence sufficient to demonstrate, prima facie, that the train operator could not have stopped the train in time to avoid the accident (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Reeve v Long Is. R.R., 27 AD3d 636, 637 [2006]). In particular, the train operator alleged that he immediately "placed the train in emergency," but could not stop the train in time to avoid the accident. However, in opposition, the plaintiff submitted sufficient evidence to raise triable issues of fact as to how far the plaintiff was located from the approaching train when he fell onto the tracks and whether the train operator could have stopped the train in time to avoid the accident (see generally Coleman v New York City Tr. Auth., 37 NY2d 137 [1975]).

Accordingly, the Supreme Court properly denied the defendant's motion for summary [*2]judgment dismissing the complaint. Goldstein, J.P., Fisher, Carni and McCarthy, JJ., concur.