DANIELS v. NEW YORK CITY TRANSIT AUTHORITY (2019)

Judgment, Supreme Court, New York County (Arthur F. Engoron, J.), entered July 27, 2017, which, upon a jury verdict, awarded damages in favor of plaintiff and against defendant New York City Transit Authority (N.Y.CTA), unanimously affirmed, without costs.

Plaintiff established a prima facie case of negligence by presenting evidence that the gap between the train doors and the platform edge was a dangerous condition, that did not comply with industry safety standards, and was a proximate cause of her injuries, which occurred when her leg slipped into the gap while she was exiting a crowded subway car.  NYCTA's compliance with its own standard of six inches as the maximum permissible gap was not conclusive on the issue of liability (Tzilianos v. New York City Tr. Auth., 91 A.D.3d 435, 936 N.Y.S.2d 159 [1st Dept. 2012];  Sanchez v. City of New York, 85 A.D.3d 580, 926 N.Y.S.2d 52 [1st Dept. 2011] ).

Contrary to defendant's argument, plaintiff's expert's testimony regarding gap standards promulgated by the American Public Transit Association (APTA) and the Public Transportation Safety Board (PTSB) did not misleadingly establish industry standards that were non-mandatory guidelines.  While mere non-mandatory guidelines and recommendations are insufficient to establish a standard of care, an expert's testimony regarding “generally accepted” standards, which are promulgated by an association such as APTA and the PTSB, and generally accepted in the relevant community at the relevant time, constitutes some evidence of negligence and may establish a standard of care (Hotaling v. City of New York, 55 A.D.3d 396, 866 N.Y.S.2d 117 [1st Dept. 2008], affd 12 N.Y.3d 862, 881 N.Y.S.2d 655, 909 N.E.2d 577 [2009];  see Sussman v. MK LCP Rye LLC, 164 A.D.3d 1139, 82 N.Y.S.3d 405 [1st Dept. 2018];  see also Rondin v. Victoria's Secret Stores, LLC, 116 A.D.3d 555, 984 N.Y.S.2d 329 [1st Dept. 2014] ).  Moreover, the expert noted in his testimony that the standards were voluntary and did not suit all transit systems.  His testimony merely served to help the jury determine whether NYCTA's own policy of a six-inch gap was reasonable, in light of the evidence (Tzilianos, 91 A.D.3d at 436, 936 N.Y.S.2d 159).

The trial court did not err in admitting evidence of gap accidents at other stations or precluding NYCTA's witnesses from testifying.  Plaintiff demonstrated that the relevant conditions of the subject accident and the previous ones were substantially the same, though they occurred at other stations (see Rodriguez v. Ford Motor Co., 17 A.D.3d 159, 160, 792 N.Y.S.2d 468 [1st Dept. 2005] ), and the probative value of the gap accident statistics outweighed any prejudice to NYCTA (Barry v. Manglass, 55 A.D.2d 1, 10, 389 N.Y.S.2d 870 [2d Dept. 1976] ).  The trial court did not improvidently exercise its discretion in precluding NYCTA's witnesses, first disclosed on the eve of trial, from testifying in light of NYCTA's lack of diligence and failure to provide a reasonable explanation for its failure to disclose two of the witnesses earlier in response to discovery demands (see Rosa v. New York City Tr. Auth., 55 A.D.3d 344, 345, 866 N.Y.S.2d 19 [1st Dept. 2008];  Shmueli v. Corcoran Group, 29 A.D.3d 309, 816 N.Y.S.2d 410 [1st Dept. 2006] ).

Finally, the jury verdict finding that plaintiff was not comparatively negligent is not against the weight of the evidence (see Lolik v. Big V Supermarkets, 86 N.Y.2d 744, 746, 631 N.Y.S.2d 122, 655 N.E.2d 163 [1995] ) in light of plaintiff's testimony concerning the crowd exiting the train that prevented her from seeing and avoiding the gap.

We have considered defendant's remaining arguments and find them unavailing.