Manfredi v Metro N.
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Manfredi v Metro N. 2007 NY Slip Op 34508(U) December 21, 2007 Supreme Court, Bronx County Docket Number: 21751/2004 Judge: Edgar G. Walker Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF THE BRONX --------------------------------------------------------------------X Manfredi, Hon. Edgar Walker PART: IA 27 Plaintiff(s), -againstMetro North, Index No. 21751/2004 Defendant(s). --------------------------------------------------------------------)( Notice of Motion I OSC. ..................................... . Answering Affidavits .......................................... . Reply Affidavits .................................................. . Pleadings ............................................................. . Stipulations .......................................................... . Memoranda of Law .............................................. . Other ................................................................... .. Upon the foregoing papers: Defendants' motions for summary judgment are resolved as follows: This action seeks damages for conscious pain and suffering and wrongful death. It is undisputed that Mrs. Manfredi was struck by a southbound Amtrak train near the north end of the Spuyten Duyvil Bridge. The Executor of Plaintiffs Estate (hereinafter plaintiff) alleges that the defendants were uegligent in failing to secure the gate through which the plaintiff entered the railroad property. Defendants MT A, Metro No11h, NYCTA and MABSTOA as \Veil as defendant Riverdale Yacht Club (hereinafter RYC) are all moving for summary judgment dismissing the complaint as to each of them. Plaintiff acknowledges that there are no known eyewitnesses to the incident. MT A Police Officer Victor Aviles concluded in his report made immediately following the accident, that plaintiff did in fact enter the railroad property from the subject gate at the Riverdale Station. It does not appear that Officer Aviles has been deposed in this action, and his report does not make clear what the source of his knowledge is and therefore this court is not ruling on the admissibility of the report at trial. However, on a motion for summary judgment the court may consider evidence thut is ultimately found to be inadmissible. This is particularly true where Page I of 4 [* 2] the plaintiff is deceased. Detres v. New York City Housing Authority, 271 A.D.2d 309. The MTA police report is sufficient to establish the existence of a triable issue fact as to where the plaintiff entered railroad property. In addition, RYC argues that they had no responsibility to secure the gate and Metro North argues that they did in fact close the gate and therefore were not negligent. In support of their motion, RYC submitted the deposition testimony and an affidavit from Dante Caputo, the treasurer of R YC. Mr. Caputo alleges that there are three gates at the track overpass. The first gate, where the street and the overpass meet. is broken and is the sole responsibility of Metro North. Atter passing through the first gate heading towards the tracks there is a gate to the left which accesses the RYC property, there is no access to the tracks from RYC property. There is also allegedly a third gate from which the tracks can be reached. This testimony is consistent with that of Peter Coleman, a Metro North employee which was submitted in support of Metro No11h's motion. The testimony of Mr. Caputo is sufficient to establish RYC'sprimafacie defense and to shift the burden lo the parties opposing the motion to establish the existence of a triable issue of fact. Alvarez v. Prospect Hospital, 68 NY2d 320. In support of its motion and in opposition to RYC's motion, Metro North submitted a lease abstract which allegedly requires RYC to erect a fence from the overpass along the border of its property. However there is no allegation that these lease provisions were not complied with. Mr. Caputo testified that a fence was in fact erected and that some time in 1985 Metro North installed the subject gate in the fence to gain access to the tracks. The affidavit of James Belliveau regarding his observations of the gate more than two years after the accident are of no probative value. ln opposing RYC's motion, plaintiff points to the testimony of Peter Coleman who testified that the gate was secured by a two locks. One of the locks was a "switch lock" commonly used by Metro North and the second lock was a Master key lock. Mr. Coleman testified that he did not know who had keys to the Master lock or why it was there. The ambiguous testimony of Frederick Weaver, a Metro North Deputy Director of Strnctures, is also insufficient to establish a triable issue of fact. Mr. Weaver testified that he did not know who had keys to the locks, and he did not know if R YC had a key to the lock. Merely referring to the Page 2 of 4 [* 3] Master lock as the "Yacht Club's lock" does not make it so. In opposing the motion plaintiffs counsel argues that a jury could conclude that a "sister Jock" system was in place and that the gate was left open by a RYC employee. The mere existence of the lock in the absence of any evidence of ownership or control is insufficient to establish an issue of fact as to any negligence on the part of RYC. Based upon the foregoing, RYC's motion for summary judgment is granted in its entirety. Metro North argues in its motion seeking summary judgment that the testimony of Peter Coleman establishes that the gate \vas locked. Mr. Coleman testified that it was his responsibility to lock the gate, although occasionally an Ecco employee may have been the one to physically lock the gate in his presence. While Mr. Coleman testified that he was sure that he 1 locked the gate on February l 6 " , he also testified that his recollection is based on "what usually happened" and that he "kind of" checked the lock everyday. This ambiguous testimony, read in a light most favorable to the plaintiff, is insufficient to establish a prima facie entitlement to judgment. Metro North's additional arguments, that there may be up to 2000 keys to the switch lock, or that Amtrak employees may have opened the lock and that it did not lrnve exclusive possession of the gate arc likewise insufficient to meet its burden of the motion. There was no evidence submitted by Metro Nonh from which it may be reasonably infen·ed that Amtrak employees opened the gate that day. Any such suggestion is purely speculative and certainly insufficient to establish Metro North's defense as a matter of law. The plaintiff is not required to establish exclusive possession as no cause of action is predicated upon res ipsa loquitur and Mr. Coleman admits it was his responsibility to lock the gate. Metro North's arguments concerning plaintiff's own conduct merely raise factual issues concerning contributory negligence and proximate cause which must be resolved at trial. The case of Derdiarian v. Felix Contmcting Corp., 5 l NY2d 308, involving facts analogous to the case herein, while cited by Metro North, holds that these are questions for the fact finder to resolve. It cannot be said as a matter oflaw that it was unforeseeable that Metro North's failure to lock the gate could lead to the tragic consequences which occun-ed in this case. As was stated by the Court of Appeals in Derdiw ian: Page 3 of 4 [* 4] ~;;- 'Becau~e questions concerning \1o, hat is foreseeable and what is nonnal may be the 1 subject of varying inferences, as is the question of negligence itself, these issues generally are for the fact finder to resolve. 51 NY2d at 315. vVhile defendant Fcco did not to make a fonnaJ motion it urges the court to search the record and dismiss the claims against it. Ecco argues that plaintiff has not shown why it would be liable. In the absence of any motion papers from Ecco establishmg that they are not liable. plaintiff has no reason to do so. To the extent that MIA, MABSTOA and NYCTA have established a prima facie en;itlement to judgment as a matter oflaw and the their application being unopposed, summary judgment is granted to those defendants. The clerk is directed to enter judgment in accordance herewith. Dated • J.2- lg,; /J ?I Hon. Edgar G. Walker, J.S.C. . I Page 4 of 4
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