You are here: / / PLAINTIFF FAILED TO SATISFY HIS BURDEN TO PROVE HIS INJURIES WERE CAUSED...

PLAINTIFF FAILED TO SATISFY HIS BURDEN TO PROVE HIS INJURIES WERE CAUSED BY A PARTICULAR TRAIN AND THE OPERATOR OF THE TRAIN WAS NEGLIGENT; GRANT OF MOTION TO SET ASIDE THE PLAINTIFF’S VERDICT AFFIRMED.

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)

You might also like
A Misrepresentation Which Is the Subject of a Provision in a Contract May Be the Basis for a Distinct Fraud Cause of Action Which Is Not Duplicative of the Breach of Contract Cause of Action
THE STIPULATION OF DIVORCE DIVESTED THE HUSBAND OF HIS RIGHTS IN THE MARITAL PROPERTY; THEREFORE THE HUSBAND’S JUDGMENT CREDITOR COULD NOT REACH THE PROPERTY EVEN THOUGH THE HUSBAND’S NAME REMAINED ON THE DEED (FIRST DEPT).
QUESTION OF FACT WHETHER THERE EXISTED A SPECIAL RELATIONSHIP BETWEEN PLAINTIFFS AND DEFENDANT INSURANCE BROKER SUCH THAT THE BROKER COULD BE LIABLE FOR THE FAILURE TO PROCURE ADEQUATE COVERAGE FOR A DEMOLITION PROJECT (FIRST DEPT).
WHERE THERE IS A WRITTEN CONTRACT, AN ACTION FOR UNJUST ENRICHMENT WILL NOT LIE AGAINST THIRD-PARTY NONSIGNATORIES (FIRST DEPT).
MISNOMER DID NOT PREJUDICE THE CITY; CITY’S MOTION TO DISMISS SHOULD HAVE BEEN DENIED AND PLAINTIFF’S CROSS MOTION TO AMEND THE SUMMONS AND COMPLAINT SHOULD HAVE BEEN GRANTED (FIRST DEPT).
MOTION TO AMEND THE COMPLAINTS IN THESE RESIDENTIAL MORTGAGE BACKED SECURITIES ACTIONS SHOULD HAVE BEEN GRANTED, COMPETING INTERPRETATIONS OF A CONTRACT SHOULD NOT BE DETERMINED AT THE MOTION-TO-DISMISS STAGE (FIRST DEPT).
EXCLUSION FOR INJURY DURING UNLOADING AN INSURED TRAILER APPLIED, EVEN THOUGH THE INJURY WAS CAUSED BY A DEFECT IN THE TRAILER.
BAILEE CANNOT, PURSUANT TO THE UCC, CONTRACT AWAY LIABILITY FOR LACK OF CARE IN STORING GOODS, PURPORTED WAIVER OF SUBROGATION UNENFORCEABLE.

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

TERMINATION OF TENURED TEACHER WAS TOO SEVERE A SANCTION FOR INAPPROPRIATE BEHAVIOR... AN AGGRIEVED PARTY NEED NOT SHOW PECUNIARY LOSS TO WARRANT AN AWARD OF SANCTIONS...