Ivery v New York City Tr. Auth.

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[*1] Ivery v New York City Tr. Auth. 2018 NY Slip Op 51788(U) Decided on December 5, 2018 Supreme Court, Kings County Boddie, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 5, 2018
Supreme Court, Kings County

Christopher Ivery, Nicole McKnight, Shonta T. McLoed, and Davell Pearce, Plaintiffs,

against

New York City Transit Authority, City of New York and Metropolitan Transportation Authority, Defendants.



502648/2016



O'Dwyer & Berstien, LLP

Attorneys for Plaintiff Christopher Ivery

52 Duane Street, 5th Floor

New York NY 10007

212-571-7100

Rubenstein & Rynecki

Attorneys for Plaintiffs Nicole Knight and Shonta T. McLoed

16 Court Street, Suite 1717

Brooklyn NY 11241

718-522-1020

Freed & Lerner, Esqs.

Attorneys for Plaintiff Davell Pearce

38 West 32nd Street, Suite 1504

New York NY 10001

212-684-7776

Law Offices of Lawrence Heisler Attorneys for Defendant NYCTA

130 Livingston Street, 11th Floor

Brooklyn NY 11201

718-694-3831
Reginald A. Boddie, J.

Recitation, as required by CPLR § 2219 (a), of the papers considered in the review of this motion:



Papers/Numbered

Notice of motion by Christopher Ivery 1

Notice of cross-motion by Davell Pearce 2

Notice of cross-motion by Nicole McKnight & Shonta T. McLoed 3

NYCTA's Opposition to motion and cross-motion 4

Reply affirmation by Davell Pearce 5

Reply affirmation by Nicole McKnight and Shonta McLoed 6

Upon the foregoing cited papers, and after oral argument, the decision and order on the [*2]above matters is as follows:

Plaintiffs were passengers in a subway car in Brooklyn on September 10, 2015, when they were injured in a train derailment. Plaintiffs contend they are entitled to summary judgment on the issue of liability against defendant New York City Transit Authority (NYCTA) on the ground of res ipsa loquitur. NYCTA, in opposition, alleges the derailment was caused by debris on the tracks from a collapsed "bench-wall." Plaintiffs' case against the City of New York and New York City Metropolitan Transit Authority was resolved prior to the filing of the instant motion and they are no longer parties to this action.

Plaintiffs aver they are entitled to summary judgment because NYCTA cannot explain the derailment of the train absent negligence on its part. Defendant, in opposition, proffered the deposition testimony of its train operator, who testified the wall fell as the train passed leaving debris on the track and causing the derailment. It also produced an affidavit if its investigator, who concluded a combination of water intrusion problems in the immediate area of the derailment accelerated the failure of the bench-wall. These problems included water infiltrating the subway system from a broken City water line that feeds a fire hydrant at street level, heavy rainfall within 24 hours prior to the incident, which was corroborated by the September 10, 2015 National Weather Service Report, and excavation activities at a site adjacent to the location of the derailment which appears to have caused additional water to run off into the subway system. Plaintiffs did not rebut these allegations except to contend "defendant had exclusive access to the operation and maintenance of the subway train and trains generally do not derail and crash absent negligence, the fact that train derailed, plaintiff invokes the doctrine of res ipsa loquitur, which creates an inference of negligence." Defendant contends it would be improper to grant summary judgment here on the basis of res ipsa loquitur.

Summary judgment is a drastic remedy that should only be granted when there are no



triable issues of fact (Bonaventure v Galpin, 119 AD3d 625 [2d Dept 2014], 2014 NY Slip Op 05145 [2d Dept 2014], citing Andre v Pomeroy, 35 NY2d 361 [1974]). The function of the court on a motion for summary judgment is not to determine credibility or resolve issues of fact, but merely determine whether issues of fact exist viewing the evidence in the light most favorable to the non-moving party (Bonaventure, 119 AD3d at 625, citing Guadalupe v New York City Tr. Auth., 91 AD3d 716 [2d Dept 2012]; Kolivas v Kirchoff, 14 AD3d 493 [2d Dept 2005]; see Pearson v Dix McBride, LLC, 63 AD3d 895 [2d Dept 2009]). Movant bears the burden of establishing its entitlement to summary judgment (Ferrante v American Lung Assoc., 90 NY2d 623, 631 [1997]).

The Court of Appeals previously held although it is possible to grant summary judgment on the ground of res ipsa loquitur, it should only be granted in the rarest of cases, where "plaintiff's circumstantial proof is so convincing and the defendant's response so weak that the inference of defendant's negligence is inescapable" (Morejon v Rais Constr. Co., 7 NY3d 203, 209 [2006]. To establish res ipsa loquitur, "(1) the event must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff" (id., quoting Corcoran v Banner Super Mkt., 19 NY2d 425, 430 [1967], quoting Prosser, Torts § 39 at 218 [3d ed]).

The Court in Morejon concluded,

the summary judgment [] issue may also be properly approached by simply evaluating the circumstantial evidence. If that evidence presents a question of fact as to the defendant's liability under the [] test for res ipsa loquitur, the case should go to trial. If the circumstantial evidence does not reach that level and present a question of fact, the defendant will prevail on the law. Alternatively, [] the plaintiff should win summary judgment or a directed verdict in the exceptional case in which no facts are left for determination (id. at 212).

Here, the defendant contends intervening events outside its control contributed to the collapse of the subway wall which left debris on the tracks and caused the train to derail. Consequently, although plaintiffs can conceivably establish the first and third indicia of res ipsa loquitur, the question of whether the accident was caused by matters exclusively within the control of the defendant remains a question of fact when the facts are viewed in the light most favorable to the non-moving party, as the court must (see Morejon, 7 NY3d at 203; see also Bonacci v Brewster Serv. Sta., Inc., 54 Misc 3d 437 [Sup Ct, Westchester County 2016]; cf. Flossos v Waterside Development Co., L.P., 108 AD3d 647 [2d Dept 2013]). Accordingly, plaintiffs' motions for summary judgment on the issue of liability are denied.



ENTER:

__________________

Hon. Reginald Boddie

Justice, Supreme Court