FOISSETT v. METROPOLITAN TRANSPORTATION AUTHORITY LONG ISLAND RAILROAD MTA LIRR (2018)

The following electronically filed documents read on this motion by plaintiffs for an order pursuant to the Federal Employers Liability Act and CPLR 3212, granting plaintiffs summary judgment on the issue of liability against defendant; and on this cross-motion by defendant for an Order pursuant to CPLR 3212, dismissing the complaint of plaintiff Lauren Foissett:

Papers Numbered

Notice of Motion–Affirmation–Exhibits EF 7–26

Notice of Cross–Motion–Aff. in Support of Cross–Motion & in Opposition to Motion EF 27–29

Affirmation in Reply EF 30

In this negligence action, plaintiffs seek to recover damages for personal injuries allegedly sustained as a result of a motor vehicle accident that occurred on December 5, 2016 at the Amtrak Sunnyside Yard located at 39th Street and Skillman Avenue, on the north side of Harold Interlocking east of 39th Street overpass, in Queens County, New York. Plaintiffs allege that at the time of the accident, Thomas Foissett and Christopher Colon (collectively hereinafter plaintiffs) were sitting in a parked work truck called a 144S at the Amtrak Sunnyside Yard when another work truck, known as a track department boom truck 201T, backed up and struck plaintiffs' truck in the rear.

Plaintiffs commenced this action by filing a summons and complaint on May 8, 2017. Defendants joined issue by service of an answer dated July 6, 2017. Plaintiffs now move for summary judgment on the issue of liability on the grounds that defendant, through its employee, was solely negligent for the happening of the accident. Defendant cross-moves for an Order dismissing the complaint of Lauren Foissett on the grounds that Lauren Foissett does not have a cognizable claim under Federal Employer's Liability Act (FELA). The cross-motion is unopposed and shall be granted as Lauren Foissett was not an employee of defendant and was not in the truck that was struck.

In support of the motion, plaintiffs submit copies of the pleadings; verified bill of particulars; transcripts of the examinations before trial of Thomas Foissett, Christopher Colon, and Jose Berrios; statements of Jose Berrios; statements of Thomas Foissett, Christopher Colon, Udele Peets, Juan Urena; statement of David Dunativ; Accident Summary; Injury/MVA Concurrence Form; Employee Accident/Incident Report; Accident/Incident Investigation Reports; Accident/Incident Findings Report; Supervisor/Foreman Statement; MTA Police Department Incident Report; Motor Vehicle Accident Report; LIRR Signal Department Accident Report; and photographs.

Plaintiff Thomas Foissett appeared for an examination before trial on September 19, 2017. He testified that he started his employment with the Long Island Rail Road (LIRR) on October 14, 2015 as a signal helper. He was employed as an Assistant Signalman at the time of the subject accident. In August 2016, he was rotated to Long Island City. On the date of the accident, he was assigned to work in a smaller team with some assistants and signalmen. There were three assistants and they met at H1, which is a trailer or shed that contains all signal logic and signal relays. On the day of the accident, they had a safety meeting in the morning. They would have a safety meeting every Monday. On the day of the accident, he was advised to take a truck with Christopher Colon and Raymond Ferraris and meet the mechanics and the assistant at H1. Before taking the truck out, he would make sure the lights, taillights, reverse lights and horn worked. He would also make sure the truck was in good running condition. Once the inspection was complete, he would sign a sheet. The sheet has to be signed every day the truck is used. On the day of the accident, he entered the truck with Mr. Colon and Mr. Ferraris. He was in the driver's seat, Mr. Ferraris was in the front passenger seat, and Mr. Colon was seated in the rear-driver's side. After passing through security at the Sunnyside Yard, they were unable to pull up to H1. There was a signal maintenance van stuck in the ballast. The van was stuck in the ballast and was perpendicular to the track. It was a very narrow roadway and only one way of traffic was able to go at a time. There was no other way to gain access to H1. He was a couple of hundred feet from the van when he parked adjacent to H2. Mr. Colon got out of the truck to back him up. He backed up as close as he could to H2 and parked his truck. Udell Petes parked his vehicle in front of their truck. The three of them were sitting in the truck with the engine off. He then observed a bright flash in his eyes. When his vision came back, he was very confused and disoriented. He felt an impact from behind him. A few minutes after the impact, he looked out the passenger mirror and observed the boom truck up against his truck.

Plaintiff Christopher Colon appeared for an examination before trial on September 17, 2017. He testified that he began his employment with the LIRR on February 5, 2016. He was hired as a signal helper. In August 2016, he was sent to the Long Island City location. On Mondays, they would start their day with a safety meeting held at headquarters. On the day of the accident, after the safety meeting, he was assigned to work with Mr. Foissett and Mr. Ferraris. They were assigned to truck 144S. Mr. Foissett was driving. He was sitting behind Mr. Foissett, and Mr. Ferraris was sitting in the front passenger seat. After leaving headquarters, they headed to the job site at Sunnyside Yard. Upon arrival at Sunnyside, they turned to go into H1 on the north side of the track and Harold Interlocking. As they drove past H2, they noticed a signal van that was perpendicular to the tracks. The ballast was disturbed. He assisted Mr. Foissett in backing their truck into the spot where they parked when working at H2. After he assisted, he got back into the truck. They heard a signal truck drive by and saw Udell Petes and Mohanmall Twahir in the signal truck. Udell Petes parked next to their truck. Their vehicle was then struck from behind by a boom truck.

Jose Berrios appeared on behalf of defendant for an examination before trial on October 12, 2017. He testified that he is currently employed by the LIRR and has been for fifteen years. He is a driver for the track department. When he underwent training, he received training on how a boom truck should backup. When he is by himself in the boom truck and needs to backup without a backup man, he would get out of the truck, walk around the truck, make sure nobody was behind him and then backup. If he had somebody with him, that person would be the backup man. He was advised that a backup man should always be used for the boom truck. On the day of the accident, he started out his day at headquarters. He did his pre-trip inspection of the boom truck. The boom truck had no mechanical problems or damage. The boom truck has two mirrors, one on the left and one on the right. There is no mirror in the cab. When sitting in the driver's seat of the boom truck, he is unable to see behind him. When backing up, he has to use the two side view mirrors. When backing up the boom truck, it makes a loud continuous beeping sound. At the time of the accident, he was backing up at approximately five miles per hour. He braked periodically and had to stop approximately three times to make sure he did not hit anything. There was a lot of work going on in the area, and there were a lot of people, trucks and equipment. On the day of the accident, he did not use a backup person because he was by himself. As he was backing down, he came into contact with plaintiffs' truck. Plaintiffs' truck was stopped at the time of the accident. Prior to the accident, he never asked anyone for assistance or indicated that he needed help backing up. He did not see plaintiffs' truck prior to the impact.

Based on the submitted evidence, plaintiffs contend that the accident was solely caused by Mr. Berrios backing up the boom truck without the assistance of a backup person, failing to observe plaintiffs' truck, and failing to stop prior to impact. Specifically, counsel contends that Mr. Berrios violated Vehicle and Traffic Law 1211(a) in that he backed the boom truck into plaintiffs' vehicle without taking proper precautions.

In opposition, defendant does not contest that it, through its employee Mr. Berrios, shares part of the liability. However, defendant contends that plaintiffs failed to establish that they were free from comparative fault. Specifically, defendant contends that Mr. Foissett made the decision to park the truck in a narrow part of the roadway, cognizant of the fact that another vehicle would be coming through the area.

The proponent of a summary judgment motion must tender evidentiary proof in admissible form, eliminating any material issues of fact from the case. If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of his or her position (see Zuckerman v. City of New York, 49 NY2d 557 [1980]).

FELA provides, in relevant part, that every common carrier by railroad engaged in interstate commerce "shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce ․ for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier" (45 USCA 51). It is well settled that when a vehicle is struck by another vehicle backing up, a prima facie case of negligence is established, with the negligence attributable to the vehicle backing up (see VTL 1211[a]; Bukharetsky v. Court St. Off. Supplies, Inc., 82 AD3d 812 [2d Dept. 2011]; Ortiz v. Calavera, 26 AD3d 319 [2d Dept. 2006]).

Here, it is undisputed that defendant's boom truck struck plaintiffs' truck while it was backing up. Having made the requisite prima facie showing of entitlement to summary judgment, the burden then shifted to the non-moving party to raise a triable issue of fact as to whether the moving party was also negligent, and if so, whether that negligence contributed to the happening of the accident (see Drummond v. Perez, 146 AD3d 645 [1st Dept. 2017]).

In opposition, no evidence has been submitted demonstrating that plaintiff driver was in any way negligent. Defendant's counsel's argument that plaintiffs' truck was illegally parked is merely speculative and, thus, insufficient to defeat the summary judgment motion (see Andre v. Pomeroy, 35 NY2d 361 [1974]). Moreover, defendant's own accident findings indicate that the primary contributing factor was Mr. Berrios' failure to use a backup person. Other contributing factors listed were not taking time to see obstacles and not aware of surroundings.

Accordingly, and for the reasons stated above, it is hereby,

ORDERED, that plaintiffs' motion is granted, plaintiffs THOMAS FOISSETT and CHRISTOPHER COLON shall have partial summary judgment on the issue of liability against defendant, and the Clerk of the Court is authorized to enter judgment accordingly; and it is further

ORDERED, that upon completion of discovery on the issue of damages, filing a Note of Issue, and compliance with all the rules of the Court, this action shall be placed on the trial calendar of the Court for a trial on serious injury and damages; and it is further

ORDERED, that defendants' cross-motion is granted and the complaint of LAUREN FOISSETT is dismissed in its entirety.

Robert J. McDonald, J.