STANLEY v. NEW YORK CITY TRANSIT AUTHORITY

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

Michael STANLEY, respondent, v. NEW YORK CITY TRANSIT AUTHORITY, appellant.

Decided: November 27, 2007

GLORIA GOLDSTEIN, J.P., STEVEN W. FISHER, EDWARD D. CARNI, and WILLIAM E. McCARTHY, JJ. Wallace D. Gossett (Steve S. Efron, New York, N.Y., of counsel), for appellant. Gary B. Pillersdorf (Pollack, Pollack, Isaac & De Cicco, New York, N.Y. [Brian J. Isaac, Diane K. Toner, and Jillian Rosen of counsel] ), for respondent.

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Solomon, J.), dated June 23, 2006, which denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff allegedly became ill, blacked out, fell onto the tracks of an elevated subway station in Brooklyn, and was struck by a train entering the station.

 The defendant met its initial burden on its motion for summary judgment dismissing the complaint by submitting evidence sufficient to demonstrate, prima facie, that the train operator could not have stopped the train in time to avoid the accident (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572;  Reeve v. Long Is. R.R., 27 A.D.3d 636, 637, 811 N.Y.S.2d 779).   In particular, the train operator alleged that he immediately “placed the train in emergency,” but could not stop the train in time to avoid the accident.   However, in opposition, the plaintiff submitted sufficient evidence to raise triable issues of fact as to how far the plaintiff was located from the approaching train when he fell onto the tracks and whether the train operator could have stopped the train in time to avoid the accident (see generally Coleman v. New York City Tr. Auth., 37 N.Y.2d 137, 371 N.Y.S.2d 663, 332 N.E.2d 850).

Accordingly, the Supreme Court properly denied the defendant's motion for summary judgment dismissing the complaint.

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