Berger v New York City Tr. Auth.

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Berger v New York City Tr. Auth. 2023 NY Slip Op 33107(U) September 5, 2023 Supreme Court, New York County Docket Number: Index No. 157005/2018 Judge: Denise M. Dominguez Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 157005/2018 FILED: NEW YORK COUNTY CLERK 09/07/2023 03:46 PM NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 09/07/2023 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: 21 PART HON. DENISE M DOMINGUEZ Justice ---------------------------------------------------------------------------------X ELIZABETH BERGER, INDEX NO. 157005/2018 002 MOTION SEQ. NO. Plaintiff, - V - NEW YORK CITY TRANSIT AUTHORITY, METROPOLITAN . TRANSIT AUTHORITY, NEW YORK CITY TRANSIT AUTHORITY DECISION+ ORDER ON MOTION Defendants. ---------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 002) 63, 64, 65, 66, 67, 68, 69, 70, 71,72, 73, 74, 75, 76,77, 78, 79,80,81, 82,83,84, 85,86,87,88, 89,90,91,92 JUDGMENT - SUMMARY were read on this motion to/for Forthe reasons that follow, the Plaintiffs summary judgment motion is denied. In this personal injury matter, the Plaintiff, ELIZABETH BERGER, alleges that on January 13, 2018 she sustained injuries as subway car doors closed against her without warning. In her complaint, the Plaintiff asserts a single cause of action sounding in negligence against Defendants NEW YORK CITY TRANSIT AUTHORITY. and METROPOLITAN TRANSIT AUTHORITY ("TRANSIT") for causing the Plaintiff to become trapped by the doors. (NYSCEF Doc. 1, 67). Although not entirely clear from the complaint, as per the Plaintiffs . motion, the Plaintiff is claiming that TRANSIT is negligent because the doors should have stayed open 10 seconds as per TRANSIT' s operating rules and because the conductor should have seen the Plaintiff stuck between the doors. Upon review, the Plaintiffs evidence does not establish entitlement to judgment as a matter of law since the evidence does not eliminate all material facts as to how the accident happened and whether TRANSIT was the sole cause of the accident. 157005/2018 BERGER, ELIZABETH vs. NEW YORK CITY TRANSIT Motion No. 002 [* 1] 1 of 4 Page 1 of 4 FILED: NEW YORK COUNTY CLERK 09/07/2023 03:46 PM NYSCEF DOC. NO. 93 INDEX NO. 157005/2018 RECEIVED NYSCEF: 09/07/2023 CJ>LR §3212 provides any party in any action, including in a negligence action, to move for s~ary judgment. (CPLR §3212 [a], Andre v. Pomeroy, 35 N.Y.2d 361, 320 N.E.2d 853 [1974]). The party seeking summary judgment, even if unopposed, has the high burden of establishing entitlement to·judgment as a matter of law with evidence in admissible form (see CPLR §3212 [b], Voss v Netherlands Ins. Co., 22 N.Y.3d 728, 734, 8 N.E.3d 823 [2014], Giuffrida v Citibank Corp., 100 N.Y.2d 72, 81, 790 N.E.2d 772 [2003},Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324-25, 501 N.E.2d 572,574 [1986], see also Zuckerman v City ofNew York, 49 NY2d 557 [1980]). Only " ... once this showing has been made ... [does] the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action". (Alvarez 68 N.Y.2d at 324). Here, the Plaintiff's own testimony (which the Plaintiff neglected to subinit) has raised questions as to what transpired on the subway car. The Plaintiff has offered varying accounts as to which car she was exiting, whepier. it was the fourth car, as she testified to at ~ei: Statutory Hearing (NYSCEF Doc. 83), the third or fourth car as she testified to at her deposition (NYSCEF Doc. 84) or the third car as she ultimately avers in her affidavit (NYSCEF Doc. 70). The Plaintiff has also provided conflicting testimony regarding how and when she changed her seat in relation to the doors and there appears to be no clear testimony, nor statement in the Plaintiff's affidavit, that identifies which door within the car she exited (NYSCEF Doc. 83, 70). The specific subway car and the specific doors are material and vital facts that.have not been established by the Plaintiff. To the extent that the Plaintiff is alleging that the conductor failed to see her and/or that the doors were defective as they failed to open/retract, the specific car and set of doors are material and necessary in evaluating TRANSIT' s potential negligence. As they are unknown this is a material question of fact that must be resolved by a trier of fact. Moreover, the Plaintiff has offered contradictory evidence regarding how long the doors were open just prior to her accident. At her deposition, the Plaintiff testified that she almost no time, "zero", elapsed between when the doors opened and when they began to close on her (NYSCEF Doc. 84}. However, in her affidavit, the Plaintiff avers that the doors were open for 2 to 3 seconds as she began to get up from her seat in order to exit (NYSCEF Doc. 84). Yet,.at her Statutory Hearing, the Plaintiff testified that she had been sitting in the subway car for five minutes before deciding to exit through the open doors (NYSCEF Doc. 83). It is also unclear from the 157005/2018 BERGER,. ELIZABETH vs. NEW YORK CITY TRANSIT Motion No. 002 [* 2] 2 of 4 Page 2of4 FILED: NEW YORK COUNTY CLERK 09/07/2023 03:46 PM NYSCEF DOC. NO. 93 INDEX NO. 157005/2018 RECEIVED NYSCEF: 09/07/2023 testimony and affidavit how long the doors remained open permitting passengers to enter/exit while the subway was in the station prior to this incident (NYSCEF Doc. 83, 84, 70). This is also a material question of factthat has not been established by the Plaintiff, and which the Plaintiff herself has offered wildly different versions. As the Plaintiff focuses on the fact that the subway doors are to remain open for 10 seconds before the closing door announcement is made and they begin to close, it is vital that the Plaintiff actually establish now long the doors were open. The Plaintiff has not established this and she has been inconsistent and contradictory in her testimony. Accordingly, upon review, the Plaintiff has not met her prima facie burden as there remain material issues of fact regarding the identification of the specific subway car and doors as well as how long the doors were open prior to closing. Thus, the sufficiently of the Defendants' opposition to the motion is immaterial as the Plaintiff has not met her burden in the first instance. I However, in Opposition to the motion, TRANSIT has submitted evidence which raises material questions of fact regarding this incident, for which, the Plaintiff is apparently the only witness. This Court recognizes that as the specific subway car and set of doors have not been identified, it appears that neither party, including the Plaintiffs expert Nicholas Bellizzi, has been able to conduct an inspection of the specific doors involved. However, both TRANSIT, and the Plaintiff, present arguments .based.upon the general operating procedures with respect to door closures. Here, TRANSIT has submitted the affidavit of Kyle Poinsette, a Professional Engineer since 2010 and a Mechanical Engineer with New York City Transit Authority who describes the general operation of the doors in the type of subway car involved in this incident. The doors in such a car close after 10 seconds. Door closing announcements are accompanied by flashing close door warnings and a two-town chime. If there was an obstacle in the doorway, the doors would automatically re-open three inches from the obstacle and attempt to re-close. If the doors cannot fully close, this cycle is repeated three times before the conductor can visually inspect to identify a problem. Based upon Poinsette's experience, and the Plaintiffs testimony, Poinsette avers that the incident could not have occurred as the Plaintiff has described. (NYSCEF Doc. 87). Poinsette' s Affidavit is also supported by the testimony of the train conductor. (NYSCEF Doc. 72). Thus, to the extent that the Plaintiff is claiming that the conductor closed the doors too quickly, did not make an announcement and/or did not release the doors when the conductor could have, TRANSIT' s affidavit and deposition testimony raise a material issue of fact as to the amount of control the conductor may have over the doors. 157005/2018 BERGER, ELIZABETH vs. NEW YORK CITY TRANSIT Motion No. 002 [* 3] 3 of 4 Page 3 of 4 INDEX NO. 157005/2018 FILED: NEW YORK COUNTY CLERK 09/07/2023 03:46 PM NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 09/07/2023 It has long been held that "; .. issues of proximate cause are fact questions to be decided by a jury. While it is appropriate to decide the question oflegal cause as a matter oflaw 'where only one conclusion may be drawn from the established facts', where there is any doubt, confusion, or difficulty in deciding whether the issue ought to be decided as a matter oflaw, the better course is to leave the point for the jury to decide." (White v. Diaz, 49 A.D.3d 134, 139, 854 N.Y.S.2d 106 [1 st Dept 2008] quoting Derdiarian v. Felix Contracting Corp., 51 N.Y.2d 308,315,414 N.E.2d 666 [1980]). Upon review, there are material questions of fact concerning how this incident occurred and whether TRANSIT was solely ·responsible for the accident, thus precluding judgment as & matter of law. Accordingly, it is hereby ORDERED that Plaintiffs motion for summary judgment is denied; and it is further ORDERED that counsel for the Plaintiff shall serve a copy of this order with notice of entry upon the Clerk ofthe C(?urt (60 Centre Street, Room 141a) and the Clerk of the General Clerk's Office (60 Centre Street, Room 119), who are directed to mark the court's records to reflect the within; and it is further ORDERED that such service upon the Clerk of the Court and the Clerk of the General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electron_ically Filed Cases (accessible at the "EFiling" page on the court's website). Any requested relief not expressly addressed herein has nonetheless been considered by the Court and is hereby expressly denied. J) ~ 9/5/2023 DATE CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: ~ N. OEMISe<MtJDOMIN CASE DISPOSED GRANTED SETTLE ORDER 0 X NON-FINAL DISPOSITION DENIED GRANTED IN PART . SUBMIT ORDER INCLUDES TRANSFER/REASSIGN 157005/2018 BERGER, ELIZABETH vs. NEW YORK CITY TRANSIT · Motion No. 002 [* 4] ) 4 of 4 FIDUCIARY APPOINTMENT . OTHER , REFERENCE . Page4of4

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