Opinion
Index No. 524310/2017
05-30-2019
ROBIN PUGH, Plaintiff, v. LONG ISLAND RAIL ROAD COMPANY and METROPOLITAN TRANSPORTATION AUTHORITY, Defendants.
Koenigsberg & Associates P.C. By: Richard Weiss, Esq., Attorney for Plaintiff. Landman, Corsi, Ballaine and Ford, P.C., By: Andrew D. Christoffel, Esq. Attorney for Defendant.
Unpublished Opinion
Koenigsberg & Associates P.C. By: Richard Weiss, Esq., Attorney for Plaintiff.
Landman, Corsi, Ballaine and Ford, P.C., By: Andrew D. Christoffel, Esq. Attorney for Defendant.
PRESENT: HON. LARA J. GENOVESI, J.S.C.
DECISION & ORDER
HON. LARA J. GENOVESI, J.S.C.
Recitation, as required by CPLR §2219(a), of the papers considered in the review of this motion:
NYSCEF Doc.No.:
Notice of Motion/Cross Motion/Order to Show Cause and Affidavits (Affirmations) Annexed ___________ 8-13
Opposing Affidavits (Affirmations) ___________ 15
Reply Affidavits (Affirmations) ___________ 16-19
Other Papers: Sur Reply ___________20
Introduction
Plaintiff, Robin Pugh, moves by notice of motion, sequence number one, pursuant to CPLR § 3212 for summary judgment on the issue of liability. Defendants Long Island Rail Road and Metropolitan Transportation Authority oppose this application.
Background
Plaintiff was a passenger on a Long Island Rail Road (LIRR) passenger train on January 4, 2017. Plaintiff allegedly sustained personal injuries when the LIRR train derailed at approximately 8:18 a.m. and collided with the bumping post and platform on track six of Atlantic Terminal, in Brooklyn, New York. Plaintiff testified at a hearing pursuant to General Municipal Law § 50-h on July 14, 2017, that she was seated on the train on her way to work when she felt a "big jolt" and was pushed forward in her seat (NYSCEF Doc. # 11 at 13).
"A bumping post is a braced post, block, or obstruction placed at the end of a stub or spur track that halts car movement and prevents cars from going off the ends of the rails" (NYSCEF Doc. # 12 at p 4, FN 4).
The National Transportation Safety Board investigated the incident and summarized its findings in a Railroad Accident Brief (NTSB Brief) (see NYSCEF Doc. # 12). According to this brief, "[f]he lead end of the lead car came to rest on top of the concrete platform at the end of the track" (see id. at p 1). "The lead car (7553), which was the most damaged, derailed upright with its front end resting on the raised concrete at the end of the track" (id. at p 4). "LIRR inspected the station tracks weekly. The last inspection before the accident occurred on January 3, 2017. The post-accident inspections of the track found no deviation from track standards, other than those caused by the accident" (id. at p 5).
The train "was travelling about 13 miles per hour when it struck the bumping post at the west end of track 6" (id.). Before entering Atlantic Terminal, restricting signals at the Brook 2 and Brook 1 interlocking tracks required the engineer to slow to "restricted speed (not to exceed 15 mph)" (id. at 3; see also id., Figure 2 at p 4). "The maximum authorized track speed in the terminal was restricted to 5 mph. In this circumstance, the engineer must still be prepared to stop in one-half his range of vision while not exceeding 5 mph" (id. at 3).
According to Figure 2., the diagram of tracks at Atlantic Terminal, Brook 1 interlocking tracks 1 and 2 appear to merge the two "Main Tracks" into the six "Station Tracks" in Atlantic Terminal (see id. at p 4, Figure 2).
The National Transportation Safety Board determined the probable cause of the Brooklyn, New York, accident was that the engineer of Long Island Rail Road train 2817 fell asleep due to his chronic fatigue. Contributing to his chronic fatigue was the engineer's severe undiagnosed obstructive sleep apnea, and Long Island Rail Road's failure to initiate obstructive sleep apnea screening for safety-sensitive personnel and refer at risk safety-sensitive personnel for definitive obstructive sleep apnea testing and treatment before the accident. Further contributing to the accident was the Federal Railroad Administration's failure to require railroads to medically screen employees in safety-sensitive positions for obstructive sleep apnea and other sleep disorders. Also contributing to the accident was the lack of either a device or safety system that could have intervened to stop the train before the collision(id. at p 9).
After the accident, the trains engineer was evaluated for possible medical conditions which identified undiagnosed obstructive sleep apnea (see id. at p 6).
Although the engineer may have been getting nearly 8 hours of sleep in a 24-hour period, the 8 hours were not uninterrupted. His training failed to adequately convey that uninterrupted hours of sleep in a 24-hour period are needed for people to obtain the full, restorative benefits of sleep, including feeling rested and having the ability to focus and a sense of emotional well-being. In summary, the engineer
desynchronized his circadian rhythms on his days off, and he did not get 8 hours of uninterrupted sleep on the days he worked. After the accident he was diagnosed with severe OSA. These factors led to poor sleep quality and resulted in the engineer being chronically fatigued.(id. at 7-8).
Plaintiff's Contentions
Plaintiff contends that "defendants' negligence was the sole proximate cause of the subject accident and there was no evidence that plaintiff was at fault or could have done anything to avoid [the] accident. Plaintiff has established that she is free from comparative negligence" (NYSCEF Doc. # 8, Affirmation in Support at ¶ 10). Plaintiff provided the NTSB brief as evidence that the train engineer operated the train while suffering from chronic fatigue and defendants were negligent in failing to screen safety-sensitive personnel for sleep apnea like the Metro North's program instituted two years prior (see id. at ¶ 11). Plaintiff maintains that defendants were negligent in failing to provide some other safety device or system that could have stopped the train before the collision (see id.).
Defendant's Contentions
Defendants, in opposition, contend that plaintiff failed to meet her prima facie burden to establish entitlement to summary judgment. Defendant avers that plaintiffs 50-h hearing testimony "adds nothing to the issue of liability in this case" (NYSCEF Doc. # 15, Affirmation in Opposition at ¶ 9). Further, defendant maintains that the NTSB brief is inadmissible based on 49 USC § 1154(b) (see id. at ¶ 10). Defendants contend that plaintiff failed to offer proof that she was a passenger on the train at issue and as a result there is a triable issue of fact (see id. at ¶ 12-13). Further, even assuming plaintiff met her burden with respect to LIRR, she failed to establish negligence against the MTA (see id. at 15).
Discussion
Summary Judgment
"[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate absence of any material issues of fact" (Stonehill Capital Mgmt., LLC v. Bank of the W., 28 N.Y.3d 439, 68 N.E.3d 683 [2016], citing Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 501 N.E.2d 572 [1986]).
Such a motion must be supported "by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions". To make a prima facie showing, the moving party must "demonstrate its entitlement to summary judgment by submission of proof in admissible form". Admissible evidence may include "affidavits by persons having knowledge of the facts [and] reciting the material facts".... "In determining a motion for summary judgment, the court must view the evidence in the light most favorable to the nonmoving party". "The function of the court on a motion for summary judgment is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist". Accordingly, "[t]he court may not weigh the credibility of the affiants on a motion for summary judgment unless it clearly appears that the issues are not genuine, but feigned". "[W]here credibility determinations are required, summary judgment must be denied" [internal citations omitted].(Bankof N.Y. Mellon v. Gordon, - A.D.3d. -, 97 N.Y.S.3d 286 [2 Dept, 2019]).
Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Chiara v. Town of New Castle, 126 A.D.3d 111, 2 N.Y.S.3d 132 [2 Dept, 2015], citing Vega v. Restani Const. Corp., 18 N.Y.3d 499, 965 N.E.2d 240 [2012]). Once a moving party has made a prima facie showing of its entitlement to summary judgment, the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (see Fairlane Fin. Corp. v. Longspaugh, 144 A.D.3d 858, 41 N.Y.S.3d 284 [2 Dept., 2016], citing Alvarez v. Prospect Hospital, 68 N.Y.2d 320, supra; see also Hoover v. New HollandN. Am., Inc., 23 N.Y.3d 41,11 N.E.3d 693 [2014]). "A motion for summary judgment 'should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility'" (Chimbo v. Bolivar, 142 A.D.3d 944, 37 N.Y.S.3d 339 [2 Dept., 2016], quoting Ruiz v. Griffin, 71 A.D.3d 1112, 898 N.Y.S.2d 590 [2 Dept., 2010]).
"A plaintiff moving for summary judgment on a cause of action asserted in a complaint generally has the burden of establishing, prima facie, 'all of the essential elements of the cause of action'" (Poon v. Nisanov, 162 A.D.3d 804, 79 N.Y.S.3d 227 [2 Dept., 2018], quoting Nunez v. Chase Manhattan Bank, 155 A.D.3d 641, 63 N.Y.S.3d 481 [2 Dept., 2017]). "A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendants breached a duty owed to the plaintiff and that the defendants' negligence was a proximate cause of the alleged injuries" (Montalvo v. Cedeno, 170 A.D.3d 1166, 96 N.Y.S.3d 638 [2 Dept., 2019], citing Rodriguez v. City of New York, 31 N.Y.3d 312, 101 N.E.3d 366 [2018]; see also Han Hao Huang v. Doe, 169 A.D.3d 1014, 94 N.Y.S.3d 572 [2 Dept., 2019]). However, "[t]o be entitled to partial summary judgment a plaintiff does not bear the double burden of establishing a prima facie case of defendant's liability and the absence of his or her own comparative fault" (Rodriguez v. City of New York, 31 N.Y.3d 312, supra).
In the instant case, plaintiff met her burden establish entitlement to summary judgment as a matter of law as against LIRR. Plaintiff established that she was a passenger on the train which derailed while entering Atlantic Terminal. Contrary to defendants' contention, this Court may consider the facts contained in the NTSB brief.
The use of written material produced in conjunction with NTSB investigations in civil actions is governed by 49 U.S.C. § 1154(b), which states: "[n]o part of a report of the Board, related to an accident or an investigation of an accident, may be admitted into evidence or used in a civil action for damages resulting from a matter mentioned in the report." 49 C.F.R. § 835.2 clarifies this rule, distinguishing between factual reports detailing the facts found in the investigation and the final report containing the conclusions of the Board.. ..Thus, while the factual report of the investigators may be used in a civil damages proceeding, the report of the Board's conclusions may not be used in such a proceeding(Lidle v. Cirrus Design Corp., No. 08 CIV. 1253 BSJHBP, 2010 WL 1644958 [S.D.N.Y. 2010]).
Nonetheless, the facts herein are undisputed by defendant. The LIRR train travelled 13 miles per hour while traversing into Atlantic Terminal and struck bumping post at the end of track 6. Even without considering the NTSB briefs conclusions, which speak to the cause of the collision, the facts alone establish that LIRR is a proximate cause of plaintiffs injuries. Furthermore, although plaintiffs no longer bear the double burden of establishing freedom from comparative fault to obtain partial summary judgment (see Rodriguez v. City of New York, 31 N.Y.3d 312, supra), here, plaintiff, a passenger on the railroad who was seated at the time of the accident, also established that she is free from comparative fault.
In opposition, defendants failed to raise a question of fact. Plaintiff need not provide "tangible evidence" that she was a passenger on the train. In that regard, her sworn 50-h testimony is sufficient. Defendants failed to provide any evidence to rebut this showing. Rather, they merely argue plaintiff failed to establish that defendant is the sole proximate cause. "A plaintiff is entitled to recover damages in a negligence action if she demonstrates that a defendant's negligence was 'a' proximate cause of the plaintiffs injuries, i.e., that the defendant's negligence was one, not necessarily the only, substantial factor in causing the injuries" (Rodriguez v. City of New York, 31 N.Y.3d 312, supra at FN 3, citing John R. Higgit, CPLR 3212 Practice Commentaries).
However, with respect to defendant MTA, plaintiff failed to meet her burden and establish liability. "The Metropolitan Transportation Authority and its subsidiaries must be sued separately, and are not responsible for each other's torts" (Mayayev v. Metro. Transp. Auth. Bus, 74 A.D.3d 910, 904 N.Y.S.2d 84 [2 Dept., 2010], citing Noonan v. Long Is. R.R., 158 A.D.2d 392, 393, 551 N.Y.S.2d 232 [1 Dept, 1990]). Plaintiff failed to establish that the MTA is a proximate cause of the plaintiffs injuries.
Conclusion
Accordingly, the plaintiffs motion for partial summary judgment is granted as against defendant LIRR and as to plaintiffs lack of comparative fault. Plaintiffs motion for summary judgment is denied as to defendant MTA.
The foregoing constitutes the decision and order of this Court.