The First Department, over a two-justice dissent, determined the NYC Transit Authority’s motion to set aside the verdict was properly granted. Plaintiff, who had no memory of the incident, claimed he was struck by defendant’s train due to the defendant train-operator’s (Lopez’s) negligence. The First Department found the evidence of both causation and negligence was speculative. With respect to the proof of the operator’s (Lopez’s) negligence, the court wrote:
… [A]ssuming arguendo that Lopez’s train caused plaintiff’s injury, plaintiff failed to make a prima facie showing that Lopez could have avoided injuring plaintiff if he had activated the train’s emergency brake upon observing plaintiff’s sneakers … . * * *
The [Ct.] of Appeals has explained that a train operator “may be found negligent if he or she sees a person on the tracks from such a distance and under such other circumstances as to permit him [or her], in the exercise of reasonable care, to stop before striking the person'” (Soto v New York City Tr. Auth., 6 NY3d 487, 493 [2006] …). Contrary to the dissent’s arguments that our holding here “eviscerate[s]” Soto, this Court and our colleagues in the [2nd] Department have explained that Soto does not relieve a plaintiff of the burden to introduce competent evidence, nor does it allow a plaintiff to rely solely on conclusory assertions and mere speculation … . Obey v City of New York, 2016 NY Slip Op 06183. 1st Dept 9-27-16
NEGLIGENCE (TRAIN ACCIDENT, PLAINTIFF FAILED TO SATISFY HIS BURDEN TO PROVE HIS INJURIES WERE CAUSED BY BEING STRUCK BY A PARTICULAR TRAIN AND THE OPERATOR OF THE TRAIN WAS NEGLIGENT; GRANT OF MOTION TO SET ASIDE THE PLAINTIFF’S VERDICT AFFIRMED)/TRAINS (NEGLIGENCE, PLAINTIFF FAILED TO SATISFY HIS BURDEN TO PROVE HIS INJURIES WERE CAUSED BY BEING STRUCK BY A PARTICULAR TRAIN AND THE OPERATOR OF THE TRAIN WAS NEGLIGENT; GRANT OF MOTION TO SET ASIDE THE PLAINTIFF’S VERDICT AFFIRMED)