Opinion
No. 2008-07359.
December 1, 2009.
In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Kings County (Schmidt, J.), dated June 23, 2008, which denied their motion for summary judgment dismissing the complaint.
WALLACE D. GOSSETT, BROOKLYN, N.Y. (Lawrence Heisler of counsel), for appellants.
Salenger, Sack, Schwartz Kimmel, LLP (Pollack, Pollack, Isaac De Cicco, New York, N.Y. [Brian J. Isaac and Michael H. Zhu], of counsel), for respondents.
Before: Skelos, J.P., Eng, Austin and Roman, JJ., concur.
Ordered that the order is affirmed, with costs.
On July 13, 2004 the plaintiff Leston Black allegedly fell onto the tracks of a subway station in Brooklyn, and was struck by a train entering the station.
The defendants met their initial burden on their motion for summary judgment dismissing the complaint by submitting evidence sufficient to demonstrate, prima facie, that the defendant train operator could not have stopped the train in time to avoid the accident ( see Stanley v New York City Tr. Auth., 45 AD3d 832, 833; see also Alvarez v Prospect Hosp., 68 NY2d 320, 324). In opposition, however, the plaintiffs submitted sufficient evidence to raise triable issues of fact as to how long the injured plaintiff was on the train tracks prior to being struck by the train and whether the train operator could have stopped the train in time to avoid the accident ( see Stanley v New York City Tr. Auth., 45 AD3d at 833; see also Zuckerman v City of New York, 49 NY2d 557, 562).