DeLEON v. NEW YORK CITY TRANSIT AUTHORITY

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Supreme Court, Appellate Division, First Department, New York.

German DeLEON, Plaintiff-Appellant, v. NEW YORK CITY TRANSIT AUTHORITY, Defendant-Respondent.

Decided: May 15, 2003

NARDELLI, J.P., MAZZARELLI, WALLACH, FRIEDMAN and MARLOW, JJ. Brian J. Isaac, for Plaintiff-Appellant. Lawrence Heisler, for Defendant-Respondent.

Order, Supreme Court, New York County (Robert Lippmann, J.), entered February 11, 2002, which, in an action for personal injuries sustained when plaintiff fell onto subway tracks and was hit by a train, granted defendant Transit Authority's motion for summary judgment dismissing the complaint, and denied as academic plaintiff's cross motion for disclosure, unanimously affirmed, without costs.

Plaintiff intends to show through expert testimony that the train should have entered the station at a speed of 20 mph or less, rather than at 28 mph as the motorman testified.   Defendant argues that its speed policy decisions are entitled to a qualified immunity, and submits the affidavit of a member of its Speed Policy Committee to the effect that, based upon the Committee's regular review of appropriate train speed for all segments of track, defendant continues to adhere to its long-standing policy that a train should enter a station at the speed it was traveling in the tunnel.   Other expert affidavits submitted by defendant are to the effect that the 20 mph policy urged by plaintiff's expert is contrary to universally accepted rapid transit system operating practice and has no engineering logic or scientific basis.   We are satisfied that defendant has “entertained and passed on the very question of risk” that plaintiff would put to a jury, and has adopted a policy with respect thereto that has a “reasonable basis” in safety and efficiency considerations (see Weiss v. Fote, 7 N.Y.2d 579, 588-589, 200 N.Y.S.2d 409, 167 N.E.2d 63).   Accordingly, the doctrine of qualified immunity applies, and defendant cannot be held liable on the ground that the train should have reduced its speed as it entered the station (see Stevens v. New York City Tr. Auth., 288 A.D.2d 460, 733 N.Y.S.2d 492;  Chase v. New York City Tr. Auth., 288 A.D.2d 422, 733 N.Y.S.2d 233, lv. denied 98 N.Y.2d 611, 749 N.Y.S.2d 3, 778 N.E.2d 554).   Plaintiff's expert's additional assertion that an attentive train operator would have seen plaintiff in time to stop before hitting him is pure speculation unsupported by reference to any facts in the record or personal observations (see Santiago v. New York City Tr. Auth., 271 A.D.2d 675, 677, 706 N.Y.S.2d 721).   We have considered plaintiff's other arguments and find them unavailing.