STRICKLAND v. LONG ISLAND RAIL ROAD (2019)

DECISION & ORDER

ORDERED that the order is reversed, on the law, with costs, and the motion of the defendants Long Island Rail Road and Metropolitan Transit Authority for summary judgment dismissing the complaint insofar as asserted against them is granted.

During a snowstorm, the plaintiff fell from the sidewalk adjacent to the tracks at the Montauk train station, which is maintained by the Long Island Railroad Company, sued herein as Long Island Rail Road, and Metropolitan Transportation Authority, sued herein as Metropolitan Transit Authority (hereinafter together the defendants).  According to the affidavit of one of the plaintiff's experts, there was a 17–inch drop between the sidewalk and the tracks at the location where the plaintiff fell.  At the time of the accident, there was approximately 9.5 inches of snow on the ground and sustained winds were blowing at approximately 20 miles per hour with gusts of 30 to 35 miles per hour.  The plaintiff alleged that she fell because the edge of the sidewalk abutting the drop to the tracks was covered and obscured by large snow drifts.

The plaintiff commenced this action to recover damages for personal injuries against the defendants and the Town of East Hampton.  The plaintiff alleged, inter alia, that the defendants were negligent in failing to clear the snow in a timely fashion, and in failing to place “markers, indicators, signs, signposts, or pointers to warn pedestrians of the dangerous and hazardous change in elevation.”  The defendants moved for summary judgment dismissing the complaint insofar as asserted against them.  The Supreme Court denied the motion, and the defendants appeal.

The defendants met their prima facie burden of establishing their entitlement to judgment as a matter of law by demonstrating that there was a storm in progress at the time of the accident, and that they did not have a duty to place any additional markers to warn pedestrians of the change in elevation between the sidewalk and the tracks (see Sherman v. New York State Thruway Auth., 27 N.Y.3d 1019, 1020–1021, 32 N.Y.S.3d 568, 52 N.E.3d 231; Gilson v. Metropolitan Opera, 5 N.Y.3d 574, 577, 807 N.Y.S.2d 588, 841 N.E.2d 747; Cupo v. Karfunkel, 1 A.D.3d 48, 51, 767 N.Y.S.2d 40; Novikova v. Greenbriar Owners Corp., 258 A.D.2d 149, 154, 694 N.Y.S.2d 445).

In opposition, the plaintiff failed to raise a triable issue of fact.  The affidavits of the plaintiff's experts were speculative and conclusory, and failed to identify any specific safety standards (see Siegfried v. West 63 Empire Assoc., LLC, 145 A.D.3d 456, 43 N.Y.S.3d 33; Hanley v. City of New York, 139 A.D.3d 800, 802, 32 N.Y.S.3d 261; Thornberg v. Town of Islip, 127 A.D.3d 1162, 1163, 5 N.Y.S.3d 903).

Accordingly, the Supreme Court should have granted the defendants' motion for summary judgment dismissing the complaint insofar as asserted against them.

MASTRO, J.P., LEVENTHAL, CONNOLLY and IANNACCI, JJ., concur.