Robert Obey, Appellant,v.City of New York, Defendant, New York City Transit Authority, Respondent.BriefN.Y.Mar 28, 2017New York County Clerk’s Index No. 106088/07 New York Supreme Court APPELLATE DIVISION FIRST DEPARTMENT ROBERT OBEY, Plaintiff-Appellant, against THE CITY OF NEW YORK, Defendant, and NEW YORK CITY TRANSIT AUTHORITY, Defendant-Respondent. >> >> To Be Argued By: Mark R. Bernstein REPLY BRIEF FOR PLAINTIFF-APPELLANT SANDERS, SANDERS, BLOCK, WOYCIK, VIENER & GROSSMAN, P.C. Attorneys for Plaintiff-Appellant 100 Herricks Road Mineola, New York 11501 516-741-5252 email@example.com Of Counsel: Mark R. Bernstein Printed on Recycled Paper TABLE OF CONTENTS POINT I. THE DEFENDANT-RESPONDENT INTENTIONALLY IGNORES THE ADMITTED EVIDENTIARY PROOF. . . . . . . . . . 1 A. Robert Obey was not underneath the platform when struck . . . . . . . . . . . . . . .1 B. Robert Obey was wearing a bright yellow jacket . . . . . . . . . . . . . . . . . . . . . . .3 C. Robert Obey was not struck by the Correa train . . . . . . . . . . . . . . . . . . . . . . . .3 D. Robert Obey’s blood was not on the Correa train. . . . . . . . . . . . . . . . . . . . . . .5 E. Lopez fabricated a new story at trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6 1. Lopez’s Initial, Immediate Version of the Accident . . . . . . . . . . . . . . . .7 2. Lopez’s Fabricated Trial Version of the Accident. . . . . . . . . . . . . . . . . .9 F. Robert Obey’s drug use did not excuse Lopez’s negligence. . . . . . . . . . . . . . 10 G. Lopez’s alleged subjective beliefs were not controlling. . . . . . . . . . . . . . . . . 10 H. The Evidence Must Be Viewed in Light Most Favorable to Obey . . . . . . . . . .11 POINT II. THE AWARDS FOR PAST AND FUTURE PAIN AND SUFFERING WERE GROSSLY INADEQUATE. . . . . . . . . . . .12 POINT III. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 i ii TABLE OF AUTHORITIES NO AUTHORITIES CITED POINT I. THE DEFENDANT-RESPONDENT INTENTIONALLY IGNORES THE ADMITTED EVIDENTIARY PROOF Defendant-Respondent New York City Transit Authority’s (hereinafter “Defendant-Respondent NYCTA”) Respondent’s Brief intentionally ignores the admitted evidentiary proof upon which the jury properly based its liability verdict in favor of Plaintiff-Appellant Robert Obey (hereinafter “Obey” or “Robert Obey”). Instead of acknowledging the obvious- that the jury based its liability decisions on the properly admitted evidence- they instead submit a Respondent’s Brief which is essentially a summation arguing the weight of the evidence asserting various proposed factual conclusions that were rejected by the jury. These factual issues, which were resolved in favor of Robert Obey, included the following: A. Robert Obey was not underneath the platform when struck Robert Obey was not underneath the platform when he was struck. In fact, it was impossible for him to have been underneath the platform (rather than in the trough between the rails) when he was struck by Train Operator Lopez’s (hereinafter “Lopez”) train. As explained to the jury by Train Operator Correa (hereinafter “Correa”) (A116) and the Plaintiff-Appellant’s expert (A475, A503), a 1 tripping device (“trip cock”) hangs on each side of the train just outside of the wheels and if something outside of the rails hits that device it would activate and stop the train. Thus, if Robert Obey was underneath the platform with his leg and foot sticking out when hit by the Lopez train he would have activated the tripping device. That tripping device did not activate on Lopez’s train (or the preceding Correa train). The failure of the tripping device which sits just outside of the rails to activate demonstrates that Robert Obey did not stick his foot out while underneath the platform. Instead, the failure of that device to activate confirms Lopez’s observation that as he was pulling into the 33rd Street Station he saw Robert Obey between the running rails. Plaintiff-Appellant’s expert also explained that the tripping device does not cover the area between the running rails and does not activate when there is a body or person between the rails in the trough (A453, A503). Lopez’s first statement that he saw a body between the running rails is consistent with the tripping device not being activated. The Defendant-Respondent falsely claims that the Plaintiff-Appellant’s expert could not state where Obey was located when struck. That is a mis-statement of the trial testimony. Rather, the Plaintiff-Appellant’s expert stated that Obey was not struck by the front of the train and that this was n “side impact”[plaintiff under the platform], but rather that Obey was in the tro ot a ugh 2 between the tracks when struck (A509). That statement is consistent with Lopez’s initial view of Obey between the running rails as he entered the station. B. Robert Obey was wearing a bright yellow jacket Robert Obey was wearing a bright yellow (“mustard-colored”) jacket at the time of the accident as shown in the picture located at A785. That jacket was highly visible against the stark black track bed (shown in the picture located at A766) in the well-lit station where the accident happened to anyone who was actually paying attention. Robert Obey’s brother-in-law, George Kazane, retrieved the jacket from the hospital where Obey was taken after the accident thus corroborating that Obey was wearing the bright yellow jacket when the accident happened (A314-315). C. Robert Obey was not struck by the Correa train Plaintiff-Appellant Robert Obey was not struck by the Correa train. Correa did not see anyone fall onto the tracks in front of him (A115). He did not see anything on the tracks when he brought his train into the station. His tripping device did not activate so no one was under the platform sticking his foot out onto the tracks as repeatedly, baselessly claimed by Defendant-Respondent NYCTA. He did not see anything between the running rails as he entered the station. He 3 did not see Obey wearing a bright yellow jacket and white sneakers lying on the track bed as he entered the station. He did not see anything when he pulled his train out of the station. He did not call in a body on the tracks after leaving the t stop, and then finally called in a “body” on the tracks only after leaving the sta s Lopez, in a despic s station. In contrast, Lopez saw Obey (who was wearing a bright yellow jacket and white sneakers) laying on the stark black roadbed in this well-lit station between the running rails at the far end of the station as he entered the station and he ran Obey over with his train without ever attempting to stop. He then stopped his train as usual at the station, ran him over a second time when he pulled out going to the nex tion. Lopez’s tripping device did not activate which is consistent with his observation of Obey between the running rails. A pool of blood was found between the rails consistent with Lopez’s observation of Obey between the rails a he entered the station. The pool of blood was located at the far end of the tracks consistent with his observation of Obey at the far end of the tracks. able attempt to exculpate himself, changed his story at trial. Even under Lopez’s fabricated trial testimony version of the accident, when he saw Obey’s white sneakers before striking him they were both white- one wa 4 not red- indicating it was not covered in blood (A288). Obey had not yet be struck by the Lopez train when two white sneakers were observed (A288). The lack of blood on the wheel of Lopez’s train that struck Obey was explained by the Plaintiff-Appel en lant’s expert. The heat and temperature generated er alert, be aware, observe hat is on the tracks, and stop the train to avoid hitting a person on the tracks. . by the friction between the wheels and the rails is such that no blood “would ev be found on a wheel” (A520). Train Operator White (operating the next train entering the station) saw Obey on the tracks as she entered the station and stopped her train without hitting him. She did exactly what she was supposed to do- be w Had Lopez done the same he would not have struck Obey D. Robert Obey’s blood was not on the Correa train Robert Obey’s blood was not on the Correa train. A “Post Incident Inspection Report” noted that Defendant-Respondent NYCTA employee “Yakalov” “observed what appeared to be blood stains” (A779). In that very ame ith s report, question “9” asking “Evidence of person coming into contact w train?” was answered “No” (A779). No pictures were taken of the alleged “blood stains” (which observer Yakalov acknowledged did not provide evidence of a person being struck by the 5 Correa train). No samples were taken. No diagrams were created of the lo of “what appeared to be blood stains.” No scientific analysis was undertaken t even attempt to match “what appeared to be blood stains” to Robert Obey. Nothing was done to even attempt to confirm that “what appeared to be blo stains” were actually blood stains. Instead, the substance was simply wiped away by Defendant-Respondent NYCTA because it admittedly did cation o od not provide “[e]vi ed, at very same document recording “what appears to be blood stains” also recorded that there was ntact with the train.” dence of person coming in contact with the train.” Observer “Yakalov” was not called as a witness by Defendant-Respondent NYCTA. Not surprisingly, the jury rejected any claim that the mysterious, un-test un-evaluated substance was blood, human blood, or, more to the point, Obey’s blood. Without such proof, the jury properly rejected Defendant-Respondent NYCTA’s unsubstantiated claim that Correa’s train hit Obey. Th “[n]o” “[e]vidence of a person coming in co E. Lopez fabricated a new story at trial Lopez offered two completely different versions of this accident- one given to his superiors within twenty (20) minutes after the accident and another seven years later at trial. These inconsistent versions allowed the jury to find him to be (7) untruthful. Regardless, the Plaintiff-Appellant’s expert evaluated the stopping 6 times and distances under each version finding at least 6.52 seconds of observation and reaction time under Lopez’s initial version of the accident an d 3.5 seconds of observation and reaction time under the fabricated trial version. 1. Lopez’s Initial, Immediate Version of the Accident Defendant-Respondent NYCTA’s own Train Incident Report (which was stipulated into evidence on consent) recorded that at “1156 Hours” Lopez repo “a body on the south end of Track #1” and that nineteen (19) minutes later at “1215 Hours” he admitted that “as he was entering 33rd Street he thought he sa something between the running rail.” Those statements alone made by Lopez immediately after the accident establish that he saw Obey (“a body”) who was wearing a bright yellow jacket and white sneakers between the r rted w ails at the far end (“sout n) was t h end”) of the tracks as he entered the 33rd Street Station. The additional entry at “1307 Hours” that “a large pool of blood” was found near “survey marker 138+00” (98 feet from the front/South end of the statio consistent with Lopez’s immediate description of the accident and Obey’s testimony that he last recalled being at the front of the station when he lost consciousness. The Plaintiff-Appellant’s expert, using the 25 MPH station entry speed given by Lopez, calculated that Lopez had 6.52 seconds to travel 234 fee 7 into th ez based on what t n. le to expert somebody to react in that amount of time” (A448 y withou Have you formed an opinion, within a reasonable degree of certain as pez had sufficient time to operate the em enc A Yes A That he would have, absolutely, had enough time. e Plaintiff-Appellant’s expert opinions were un-contested because Defendant-Respondent NYCTA did not offer any opposing expert testimony at trial. e station before activating the emergency brake and he still would have avoided striking Obey. The Respondent’s Brief at pages 40-42 intentionally confuses the Plaintiff-Appellant’s expert’s calculations under the first version given by Lop by trying to limit it to the 151 foot headlight distance. However, the headlight distance is irrelevant to this calculation because this calculation is not he headlights would have illuminated. Rather, it is based on Lopez’s statements of what he actually saw between the rails as he was entering the statio The trial Court, in response to Defendant-Appellant NYCTA’s application, restricted the Plaintiff-Appellant’s expert to explaining that “there was a certain amount of time and it’s reasonab ). The Plaintiff-Appellant’s expert ultimately gave this testimon t objection (A478-479): Q ty, to whether Train Operator Lo erg y braking mechanism [before striking Obey]? Q Okay. What’s that opinion? Th 8 2. Lopez’s Fabricated Trial Version of the Accident The jury was free to completely disregard Lopez’s recently fabricated trial version of the accident. In any event, the Plaintiff-Appellant’s expert evaluated the stopping time and distance under Lopez’s trial version of the accident. Based on Lopez’s trial claim that he saw two white sneakers against the stark black roadbed thirty-five (35) feet from the front of the station, that he was travelling only fifteen (15) MPH, and that nothing prevented him from seeing those sneakers earlier than he did coupled with the fact that the headlights illuminated the tracks one hundred and fifty-one (151) feet in front of the train, the Plaintiff-Appellant’s expert calculated that Lopez had 3.5 seconds to observe Obey and to react to activate the emergency brake to avoid hitting Obey. nable degree of certainty, as to whether Train Operator Lopez had sufficient time to stop the train before arriving where he claims he saw sneakers, at 35 feet before the front of the station, under the circumstances we discussed? . . . . And what is that opinion? A. Absolutely, he had enough time. The Plaintiff-Appellant’s expert opined, without objection, as follows: Q Do you have an opinion, within a reaso A. Yes. . Q 9 F obert Obey’s drug use did not excuse Lopez’s negligence. R Robert Obey was an active, recovering drug user at the time of the accident. However, his drug use did not grant Lopez license to run him over (twice) with his train without ever attempting to stop. Instead, the jury was permitted to consider Obey’s drug use as a reason why he wound up on the tracks in the first place an they held him 60% accountable for causing this accident. The jury also found Lopez 40% responsible for fai d ling to stop the train despite adequate time to stop e train without hitting him. th G. Lopez’s alleged subjective beliefs were not controlling Lopez’s fabricated trial testimony offering his subjective beliefs of w believed he was observing should not override the jury’s factual findings. Shockingly, Lopez admitted that his “peripheral vision is not the sharpest.” That is not an excuse for failing to see a person between the running rails wea bright yellow jacket and white sneakers against a stark black roadbed. Correa acknowledged that if something was bright he could see it on the black track bed (A118). Even if the jury accepted Lopez’s fabricated trial version, the eviden still demonstrated that he should have seen Robert Obey when the headlights illuminated him from one hundred and fifty-one (151) feet in hat he ring a ce front of the train and he had 3.5 seconds to observe and react to avoid hitting him. 10 H. The Evidence Must Be Viewed in Light Most Favorable to Obey Viewing the evidence in the light most favorable to Robert Obey and affording him the benefit of every reasonable inference, there was a reasonable view of the evidence such that the jury properly found that Lopez had enough tim and distance to observe Obey on the tracks and activate his emergency brake to avoid striking him. In sum, Lopez had at least 6.52 seconds/234 feet to observe and then react in order to stop the train under the version of the accident he g within nineteen (19) minutes of the accident to avoid hitting Robert Obey. Alternatively, he had as much as 3.5 seconds/75 feet at 15 MPH under the fabricated version he gave to the jury at trial. The jury’s liability verdict finding Defendant-Respondent NYCTA 40% respons e ave ible for causing this accident should ot have been disturbed by the lower Court. n 11 POINT II. THE AWARDS FOR PAST AND FUTURE PAIN AND SUFFERING WERE GROSSLY INADEQUATE bert obert Obey has lived with that open wound injury re iculously claim that the injury amounts to no more t ent ion so that he can wear a prosthetic. This medical proof was uncontested t trial. One needn’t look any further than the picture of Plaintiff-Appellant Ro Obey’s injury shown at A786 to conclude that the jury’s combined award of $450,000.00 for past and future pain and suffering were grossly inadequate and should be set aside by this Court. R for more than nine (9) years. Defendant-Respondent NYCTA refuses to acknowledge the horrific extent of Robert Obey’s injury. Their best attempts to avoid having the past and futu pain and suffering awards set aside are to lump those awards together with the economic damages awards and to rid han a severe fractured Ankle. In reality, Robert Obey suffered a partially severed Left Foot, underw eight (8) separate operations, was initially hospitalized for several months, thereafter remained hospitalized for seven (7) years, is left with a grotesque, painful open wound, requires the use of a cane, and is in need of a below-the-knee amputat a 12 POINT III. CONCLUSION inding ds/75 ages und, and requires a Below-the-Knee Surgery to allow The lower Court should not have disturbed the jury’s liability verdict f Defendant-Respondent NYCTA 40% responsible for causing this accident. Viewing the evidence in the light most favorable to Plaintiff-Appellant Robert Obey and affording him the benefit of every reasonable inference, there was a reasonable view of the evidence under which the jury properly found that Train Operator Lopez had enough time and distance to observe Robert Obey on the tracks and to activate his emergency brakes to avoid striking him. Specifically, Lopez had at least 6.52 seconds/234 feet to stop the train under the version of the accident he gave within nineteen (19) minutes of the accident and 3.5 secon feet under the contradictory version he gave seven (7) years later at trial. The lower Court should have set aside the jury’s pain and suffering awards totaling $450,000.00 and either increased those amounts or ordered a new dam trial. Plaintiff-Appellant Robert Obey suffered a partially severed Left Foot, underwent eight separate operations, was hospitalized in excess of seven years, remains with an open, oozing wo him to wear a prosthetic. 13 As such, this Appellate Court should re-instate the jury's verdict finding Defendant-Appellant NYCT A 40% responsible for causing the accident and set aside the jury's award for past pain and suffering as grossly inadequate. DATED: November 20,2015 Mineola, New York 14 Mark R. Bernstein, Esq PRINTING SPECIFICATIONS STATEMENT Pursuant to 22 NYCRR § 600.10(d)(1)(v) The foregoing brief was prepared on a computer. A proportional typeface was used, as follows: Name of typeface: Times New Roman Point size: 14 Line spacing: Double The total number of words in the brief, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, table of citations, proof of service, certificate of compliance, or any authorized addendum containing statutes, rules, regulations, etc. is 2,781.