SERFATY v. NEW YORK CITY TRANSIT AUTHORITY

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

Alice SERFATY, Individually and as Mother and Natural Guardian of Aerial Serfaty, an Infant, et al., Respondents, v. NEW YORK CITY TRANSIT AUTHORITY, Appellant.

Decided: October 26, 1998

Before BRACKEN, J.P., and MILLER, O'BRIEN and SANTUCCI, JJ. Wallace D. Gossett, Brooklyn, N.Y. (Lawrence Heisler of counsel), for appellant. Silberstein, Awad & Miklos, P.C., Garden City, N.Y. (Joseph Awad and Paul N. Nadler of counsel), for respondents.

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County (Posner, J.), dated September 8, 1997, which denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, the defendant's motion for summary judgment is granted, and the complaint is dismissed.

The injured plaintiff sustained serious physical injuries as a result of being struck by a subway train.   The injured plaintiff has no recollection of how the accident occurred, and the only evidence of causation is that provided by the motorman of the train, who observed the injured plaintiff dart out from behind a column directly in front of the moving train.   The record conclusively demonstrates that the accident was unavoidable and that no negligence may be attributed to the motorman.   Accordingly, the defendant demonstrated its entitlement to judgment as a matter of law (see, Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642).   The speculative and wholly conclusory opinion of the plaintiffs' expert witness was insufficient to give rise to an issue of fact as to the defendant's negligence (see, Abdullah v. City of New York, 203 A.D.2d 397, 612 N.Y.S.2d 597).   Therefore, the defendant's motion is granted.

MEMORANDUM BY THE COURT.

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