Opinion
No. 51 SSM 1
03-24-2020
Cheryl H. DANIELS, Respondent, v. NEW YORK CITY TRANSIT AUTHORITY, Appellant.
New York City Transit Law Department, Brooklyn (Harriet Wong and Lawrence Heisler of counsel), for appellant. Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for respondent.
New York City Transit Law Department, Brooklyn (Harriet Wong and Lawrence Heisler of counsel), for appellant.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for respondent.
OPINION OF THE COURT
MEMORANDUM. On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11 ), order reversed, with costs, and a new trial ordered. In these circumstances, the trial court properly admitted plaintiff's expert testimony regarding non-mandatory gap standards promulgated by the American Public Transit Association and the Public Transportation Safety Board (see De Long v. County of Erie , 60 N.Y.2d 296, 307, 469 N.Y.S.2d 611, 457 N.E.2d 717 [1983] ). However, Supreme Court abused its discretion as a matter of law by admitting evidence of prior accidents at New York City subway stations involving the gap between the train car and platform in the absence of a showing that the relevant conditions of those accidents were substantially the same as plaintiff's accident (see Hyde v. County of Rensselaer , 51 N.Y.2d 927, 929, 434 N.Y.S.2d 984, 415 N.E.2d 972 [1980] ; Gilliard v. Long Is. R.R. Co. , 45 N.Y.2d 996, 997, 413 N.Y.S.2d 116, 385 N.E.2d 1044 [1978] ).
Chief Judge DiFiore and Judges Rivera, Stein, Fahey, Garcia, Wilson and Feinman concur.