REEVE v. LONG ISLAND RAIL ROAD (2006)

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (Hart, J.), dated July 19, 2004, as granted the motion of the defendants Long Island Rail Road and Metropolitan Transportation Authority for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is affirmed insofar as appealed from, with costs to the defendant Long Island Rail Road.

The plaintiff commenced this action to recover damages for personal injuries he sustained on September 13, 2000, when he was struck by a Long Island Rail Road train while lying upon the tracks east of the Riverhead Station in Suffolk County.   Before he was struck by the train the plaintiff left a local bar and walked through a parking lot and onto the Long Island Rail Road tracks to take a short cut home.   The plaintiff could not recall how he ended up lying upon the tracks.

The Supreme Court properly granted the motion of the defendants Long Island Rail Road and Metropolitan Transportation Authority for summary judgment dismissing the complaint insofar as asserted against them.   The moving defendants demonstrated their prima facie entitlement to judgment as a matter of law by establishing that their personnel exercised reasonable care and that the accident was unavoidable under the circumstances (see Wadhwa v. Long Is. R.R., 13 A.D.3d 615, 788 N.Y.S.2d 148;  Guller v. Consolidated Rail Corp., 242 A.D.2d 283, 284, 661 N.Y.S.2d 42).

The plaintiff, in opposition to the motion, failed to raise a triable issue of fact.