Summary
affirming summary judgment in favor of defendants where sole proximate cause of infant plaintiffs' injuries was reckless behavior in proceeding around a safety gate and crossing railroad tracks
Summary of this case from Farley v. Greyhound Canada Transportation Corp.Opinion
2002-06059
Argued April 25, 2003.
May 19, 2003.
In two related actions to recover damages for personal injuries, etc., the plaintiffs in Action No. 1 appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Winslow, J.), dated May 8, 2002, as granted that branch of the motion of the defendant in Action No. 1 which was for summary judgment dismissing the complaint in Action No. 1, and the plaintiffs in Action No. 2 appeal, as limited by their brief, from so much of the same order as granted that branch of the motion of the defendants in Action No. 2 which was for summary judgment dismissing the complaint in Action No. 2.
William K. Polignani, Long Beach, N.Y., for appellants in Action No. 1.
Elovich Adell, Long Beach, N.Y. (Mitchel Sommer of counsel), for appellants in Action No. 2.
Tricia Troy Alden, Jamaica, N.Y. (William J. Blumenschein of counsel), for respondents in Action Nos. 1 and 2.
Before: ANITA R. FLORIO, J.P., ROBERT W. SCHMIDT, SANDRA L. TOWNES, STEPHEN G. CRANE, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with one bill of costs.
The defendants established their prima facie entitlement to summary judgment dismissing the complaints. In response, the plaintiffs failed to raise a triable issue of material fact as to the defendants' negligence. There was no evidence in the record that the infant plaintiffs were injured as a result of the defendants' failure to properly maintain safety equipment at a pedestrian crossing over railroad tracks, or that the train failed to properly signal its approach to the crossing. The sole proximate cause of the infant plaintiffs' injuries was their reckless behavior in proceeding around a safety gate in the down position and crossing the tracks directly behind an eastbound train without first checking to see if a westbound train was approaching (see de Pena v. New York City Tr. Auth., 236 A.D.2d 209, 210; Avery v. N.Y.O. W. Ry. Co., 205 N.Y. 502, 506).
FLORIO, J.P., SCHMIDT, TOWNES and CRANE, JJ., concur.