Robert Obey, Appellant,v.City of New York, Defendant, New York City Transit Authority, Respondent.BriefN.Y.March 28, 2017 1 November 8, 2016 OVERNIGHT MAIL Court of Appeals, State of New York 20 Eagle Street Albany, NY 12207 Att.: John P. Asiello, Chief Clerk & Legal Counsel to the Court Re: Robert Obey v. The City of New York APL-2016-00194 Dear Mr. Asiello: This office is appellate counsel for the plaintiff-appellant, Robert Obey, in the above- captioned matter. We submit this letter memorandum pursuant to 22 NYCRR §500.11. For the reasons outlined herein, it is respectfully submitted that the Appellate Division’s 3-2 order and decision dated September 27, 2016, should be reversed, and the jury verdict in favor of the plaintiff against defendant-respondent, New York City Transit Authority (“TA”), should be reinstated in full. A. Basic facts; the decision of this Court in Soto v. TA and the First Department in Dibble v. TA. On May 9, 2006, plaintiff fell onto the subway tracks and was struck by a train sustaining severe injuries. The majority and the dissent differed dramatically in their application of the law to the facts. The majority affirmed the trial court’s order setting aside the jury verdict, while the dissent found sufficient evidence to establish a prima facie case based on Soto v. NYCTA, 6 NY3d 487 [2006] (“Soto”), and that Dibble v. NYCTA, 76 AD3d 272 [1st Dept. 2010], app. wdn. 17 NY3d 791 [2011] (“Dibble”), had to be confined to its facts. The undersigned represented the plaintiff in Soto and also represented the plaintiff in Dibble after the Appellate Division reversed the jury verdict in plaintiff’s favor and dismissed the case. While my application for leave to appeal to MANHATTAN OFFICE ___________________________________________ 225 BROADWAY SUITE 307 NEW YORK, NY 10007 TEL: 212-233-8100 FAX: 212-233-9238 WESTCHESTER OFFICE _____________________________________________________ 600 MAMARONECK AVENUE SUITE 400, 4TH FLOOR HARRISON, NY 10528 TEL: 914-328-2400 FAX: 914-328-2401 ARTHUR POLLACK (1950-1985) CONRAD E. POLLACK BRIAN J. ISAAC FRED A. DECICCO OF COUNSEL _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ALLEN E. KAYE JOSEPH B CARACCIO NELSON A MADRID H SUSAN OH YUNYI PARK JILLIAN ROSEN KATHLEEN M TONKOVICH OF COUNSEL _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ _ _ _ _ _ JACOB ARONAUER GREGG A, PINTO ADMITTED IN N Y & N J 2 the Appellate Division was denied, this Court granted my direct application for leave to appeal (16 NY3d 706 [2011]), after which the Transit Authority undertook settlement negotiations, offering a even figure settlement which plaintiff accepted, so that the appeal was mooted and withdrawn on June 3, 2011. In all likelihood, this Court, had the appeal come before it, would have reversed the Appellate Division’s decision. Moreover, Soto and its progeny remain good law (Coleman v. NYCTA, 37 NY2d 137 [1975]; Noseworthy v. NYC, 298 NY 76 [1948]; Clarke v. NYC, 295 NY 861 [1946]; see generally, Brennan v. NYC, 277 AD 854 [1st Dept. 1950]; Mikorski v. NYC, 270 AD 769 [2d Dept. 1946], lv. den. 270 AD 819 [2d Dept. 1946]), and the reasoning therein compels reversal and reinstatement of the verdict in the case at bar.1 B. The grant of a directed verdict, as a matter of law, did not accord with the evidence viewed in a light most favorable to plaintiff, and was improper as a matter of law. The train operator repudiated prior statements at trial, but plaintiff established liability under either version of the events. It is axiomatic that a prevailing party in a jury trial is entitled to the most favorable view of the evidence possible. See, Garricks v. NYC, 1 NY3d 22, 27 [2003]; Cohen v. Hallmark Cards, 45 NY2d 493 [1978]. Only where it would be “utterly irrational” for the jury…to reach the conclusion it determined may the court conclude that the verdict, as a matter of law, is not supported by the evidence” (Campbell v. Elmira, 84 NY2d 505, 510 [1994]). The majority in the Appellate Division did the opposite in this case. In this case, the motorman, Abraham Lopez, essentially repudiated what he told investigators at the scene of the accident when he testified at trial, in an attempt to create a defense where none existed. However, plaintiff was able to establish that under either version of the events, Mr. Lopez was liable for failing to prevent an avoidable accident. Documents properly admitted into evidence as TA business records established the propriety of this assertion. Specifically, a Train Incident Report noted that a “1156 hours, train operator A. Lopez…located at 28th Street…reported to Control Center that he thought he saw a body on the south end of track 1 at the 33rd Street Station…” and that approximately 19 minutes later at “1215 hours, train operator Lopez…report[ed] via telephone to…Control Center that as he was entering [the] 33rd Street Station he thought he might have seen something between the running rail.” At “1307 hours, Superintendent Morro further reported that there was a large pool of blood…at Survey Marker 138+00” (Record, 757-60). A Correspondence Sheet prepared by Station Supervisor Loretta Gilliam noted that she “observed blood on roadbed between track marker #s 44 and 45” at that station after the accident (772). A “Cleaning Report” prepared by the TA indicates that a transit cleaner, Michael Sosa, inspected the south end of the station and found it “bloody” (776). In his trial testimony, Lopez admitted he was operating a #6 train at 33rd Street, entering the station at approximately 25 mph (273-74, 306-07); he did not see anyone fall onto the tracks in front of him; he was responsible for stopping the train if he saw a person on the tracks (276, 287), and he was responsible for scanning the tracks while stopping the train (283-84, 286-87). He was forced to concede that this contradicted the TA documents, which indicated that Lopez 1 Here, as in Soto, the jury apportioned most of the fault for the accident (60%) to the plaintiff. 3 said in official reports that he saw a body on the south end of the station and thought something was between the running rails. He now denied he saw a “body”, affirming that as he was stopping the train he saw “white sneakers” on the roadbed 35’ from the front of the station, the point at which the train was to stop (277-79, 297). At that point he was braking and the train was very close to stopping (277-82). The sneakers were “a couple of feet” in front of the train (285) and there was nothing blocking his view of them (297-98). He did nothing but bring the train to a stop as intended (288). He did not look under the train or walk back 35’ to inspect the area; instead, he moved the train forward to the next stop at 28th Street. Then he called the TA Control Center, having concluded that the sneakers might have been part of a body lying on the track bed (292). The purpose of his call was to warn approaching trains to stop (306). The accident took place four minutes before the end of his shift (298). Lopez told the superintendent he did not stop because he thought he only saw sneakers and debris on the roadbed (333-39). He admitted his “peripheral vision is not the sharpest” (285), and added that he was traveling no more than 15 mph within 100’ of the end of the platform (299). A train operated by Daniel Correa preceded Mr. Lopez’s train in the station; a train operated by Jacqueline White entered the station after Mr. Lopez’s train (398). Both testified at trial. Mr. Correa admitted that TA motormen are required to observe the rails and stop if they see something (90-91). A window on the front of each subway car allows a motorman to see the rails (97); the operator enters a station with the driving mechanism in neutral, then pulls back to stop the train (96). A motorman must scan the rails as he enters the station to ensure that there is nothing on the tracks (97-98, 104). Obviously, upon seeing a person, an operator must attempt to bring the train to a stop before striking the individual (98, 104-05). The roadbed is generally black; something white should be visible (118). Ms. White testified that as she entered the station at 15-20 mph people waved their arms, and she saw a man on the roadbed; she stopped her train without striking the individual, about five car lengths into the station; the person (the plaintiff) on the tracks was 2 car lengths ahead of her train (398-402). The TA did not challenge the competency of plaintiff’s expert, Dr. Carl Berkowitz. His testimony made it clear that the accident was preventable under either version of the events presented by Mr. Lopez. Dr. Berkowitz stated that the subway cars were 50’4” long (454); a train moving at 25 mph travels 36’ per second (462). The TA’s emergency brake stopping distance chart for this train was marked into evidence; it establishes that braking distance would be 180’ (461). The subject station is 512’ in length (454); Marker “138+00” was 98’ from the front of the platform (455), and there were two markers with “44” and “45” markings, one a single “44/45” column 39.2’ from the front of the platform (456), and the other a “45” column 73’ from the front of the platform with an adjacent “44” column 83’ from the front of the platform (457). Based upon the version given by Lopez in the TA’s Train Incident Report, Lopez should have been able to stop the train before striking the plaintiff. A pool of blood was found at the “138+00” marker, which was 414’ from the front of the station; the platform was 512’ long; marker “138=00” was 98’ from the front of the station. Dr. Berkowitz calculated that the train would have traveled 234’ into the station before the emergency brake was activated. At 25 mph, the train traveled 36’ per second, so it would take 6.52 seconds to travel 234’ (462). Lopez could have moved his train 234’ into the station at 25 mph over 6.52 seconds before activating the emergency brake, and still had sufficient time to avoid striking the plaintiff. Using the “44” and 4 “45” columns yielded an even stronger possibility of avoiding the accident. The “45” column was furthest from the end of the platform (83’ away), 429’ into the station or 15’ further than the “138.00+” marker. This would increase reaction time by .4 seconds, giving Lopez 6.92 seconds to bring his train to a halt (465). The “44/45” single column was 39.2’ from the front of the station or 483’ into the station, which would give Lopez, at 25 mph, 8.42 seconds to avoid striking the plaintiff (465-67). Accordingly, the Appellate Division decision holds that a train operator having 7-9 seconds to apply his brakes to avoid a person on the tracks of whom he has an unobstructed view is exonerated from liability as a matter of law, even where his trial testimony is diametrically opposed to what he said at the time of the accident. As we will show, this conclusion simply cannot be accepted by this Court, being inconsistent with Soto and its progeny.2 Incredibly, even if Lopez’s sanitized version of the accident was credited, the accident was preventable. Dr. Berkowitz testified that the headlights of the front car flare out 50-151’ and would have illuminated the white sneakers on the black roadbed from 152’ away (467-69). If Lopez was traveling at 15 mph when he was halfway into the station, the emergency stopping distance was 75’ (469); at 15 mph, a train travels 22’ per second (469-70), so Lopez would have traveled 76’ (151’ headlight distance – 75’ stopping distance) over 3.5 seconds at 15 mph before applying the emergency brake. Based on those calculations, and under Lopez’s sanitized version of the accident, he should have avoided striking the plaintiff. C. The majority and dissenting opinions in the Appellate Division decision; the dissent properly applied the law to the facts. In its decision, the majority noted that plaintiff had no memory of the accident, and that the psychologist who treated him testified that he told her she had been “high” on drugs which can “cause dizziness and, if abused, fainting.” Plaintiff entered the track at around 11:15 AM and was discovered injured at 11:58. The majority noted that during this time “at least three trains passed through the 33rd Street Station. The first train was operated by Daniel Correa, the second train …was operated by Abraham Lopez, and the third train … was operated by Jacqueline White.” The majority wrote that a large pool of blood was found on the tracks. Stains of what appeared to be blood were found on four cars of Mr. Correa’s train, though he denied seeing plaintiff lying on the tracks. Mr. Lopez’s train had no bloodstains on it, but he reported seeing white sneakers on the tracks and called in an alert as to a possible obstacle; Ms. White reduced the speed of his train when she saw passengers waving and pointing from the platform. Plaintiff’s theory of liability was that Lopez was negligent in failing to stop, and the Transit Authority was liable for this act. The jury agreed but apportioned 60% of the fault to the 2 On a summary judgment motion, while a court may not weigh the credibility of affiants, it may disregard factual averments which raise only “feigned” issues, and grant summary judgment. See, Glick & Dollack v. Tri-Pac Export, 22 NY3d 439 [1968]. Repudiation of sworn testimony in opposition to a motion for summary judgment, of course, presents a “feigned factual issue” and the new testimony need not be credited. See, Saavedra v. 89 Park Ave., 2016 NY AD LEXIS 6858 [1st Dept. 2016 While this case does not involve a summary judgment motion the fact that plaintiff was non-suited based on changed testimony that would probably have been rejected as “feigned” by the Appellate Divisions is ironic. 5 plaintiff. Upon the TA’s post-trial motion, the Supreme Court set aside the verdict and dismissed the complaint for failing to make a prior showing of causation or negligence. The majority affirmed on both counts. The majority, citing to Kim v. NYCTA, 27 AD3d 332 [1st Dept. 2006], lv. den. 7 NY3d 714 [2006], held that plaintiff failed to produce credible evidence that Mr. Lopez’s train caused his injury. In Kim, an alert was issued to trains after a passenger reported seeing someone on the tracks; a TA train operator saw plaintiff on the tracks and engaged the emergency brake but was unable to stop the train. The First Department set aside the jury verdict for the plaintiff as “pure speculation” because there was insufficient proof that defendant’s train had injured the plaintiff because “multiple trains passed over the tracks after the alert, no blood was found on the defendant’s train, and the plaintiff’s sole evidence showing causation was that the injured plaintiff was discovered lying between the tracks under defendant’s train.” Here, likewise, “The evidence shows that Correa’s train passed through the 33rd Street Station after plaintiff testified to entering the station, and it is mere speculation to assert that plaintiff fell to the tracks only after Correa’s train had passed through the station.” The “physical evidence points to Correa’s train as the proximate cause of plaintiff’s injuries”, since it had the bloodstains, whereas Lopez’s train did not. It strained credibility to think that the stains were grape juice, or that the lack of stains resulted from heating or cauterization processes, since a pool of blood was found on the tracks. Plaintiff offered, “no explanation of why any blood on Lopez’s train would have been cauterized but the similar substance on Correa’s train was not.” Accordingly, Lopez’s report of seeing sneakers on the track, while Correa denied seeing anything, did not establish that Lopez’s train caused the accident. Whichever train injured the plaintiff, Lopez could have observed the sneakers. Correa’s failure to see a person on the tracks did not establish that plaintiff had not already fallen, especially given that blood was found on his train. Thus, plaintiff failed to make the requisite showing that Lopez caused his injury, “and the jury verdict was based on pure speculation.” Negligence was also not established because plaintiff failed to show that Lopez could have avoid injuring plaintiff had he activated the emergency brake sooner. The station platform was 512.5’ long, enabling 10 50-foot cars to stop on it. Plaintiff was injured approximately 100’ from the end of the station where a large pool of blood was discovered. The disputed issue was when Lopez saw the sneakers. He testified that he was “almost fully stopped and towards the end of the station”; the written report stated that he saw the sneakers “as I made my station stop.” At trial, he explained that he was almost at the end of the station when he saw the sneakers a few feet in front of the train. Plaintiff, however, pointed out that an incident report stated that Lopez orally reported observing sneakers “as he was entering 33rd Street.” This admission supported a finding that he saw the sneakers when he first entered the station, about 400’ from where the blood was found. Plaintiff’s expert testified that if Lopez had 400’ to react and was traveling 25 mph as he claimed, he would have had 6.5 second to react and engage the emergency brakes to stop the train before reaching the sneakers. He would be guilty of failing to see what he should have seen, and therefore negligent. But the majority found that plaintiff “implicitly acknowledged that the evidence does not show that Lopez had observed the sneakers immediately upon entering the station”; expert testimony established that the headlights on the train “illuminated the otherwise 6 dark train tunnel for a range of between 50-150’”, and if Lopez saw the sneakers from 150’ at a speed of 15 mph, he would have had “3.5 seconds to react.” Citing Soto, the majority acknowledged that a motorman could be found negligent if he could have stopped before striking the person, but found that Soto “does not relieve a plaintiff of the burden to introduce competent evidence, nor does it allow plaintiff to rely solely on conclusory assertions and mere speculation.” This last observation was sheer sophistry. The TA’s claim in Soto was that plaintiff’s expert testimony rested on nothing more than speculation. The TA also claimed that the motorman did not have a chance to bring his train to a stop after plaintiff should have been seen. By any measure, the facts in Soto were far worse for the plaintiff than the facts disclosed by this record. In Soto, plaintiff was walking on a catwalk between stations when a train struck him. Plaintiff’s expert testified that because he was running, he would have been visible to the motorman; the expert factored running speed into his analysis.3 This Court found that plaintiff’s expert, Nicholas Bellizzi, gave testimony sufficient to establish a prima facie case, though plaintiff’s conduct was “reckless.” In Soto, plaintiff and his friends had consumed alcohol (record, pp. 291-94); they took an N train at 14th Street, and got off at Queensboro Plaza to take the #7 train at the elevated platform (294-5). Red tape around pillars implied a service problem, so they walked between stations on a catwalk on the side of the tracks to reach the next station; they arrived without incident, but no train came and they decided to walk to the 40th St. station (296-301). Unfortunately, before plaintiff and his friends got to the next station, a train came up from behind them. Plaintiff saw the headlights of the oncoming train when he was about halfway to the next station, and began to run at about 7-8 mph, a figure plaintiff estimated based on his prior use of treadmills (302-5). The train “clipped” his left leg and he suffered a traumatic amputation of both legs (306-07). The motorman in Soto, Windsor Maxwell, testified that he was driving at or under the speed limit of 25 mph; he approached a traffic box with three lights, and saw something on the walkway which he later realized was a person; he first said he placed the train in emergency when he saw the object, then said he did so when he realized it was a person; he marked a photograph showing where plaintiff was when he first saw him; the mark was in front of the signal box (A71, 99-101, 112-19). At his deposition, however, he told police officers that he did not see any of the men until he was passing them, because the signal device hid them (A70-74, 126). He wrote that on reaching the signal he saw an object behind it (74, 128-9); in his trial testimony, he disavowed the report (129-31). Maxwell admitted he was one car length away from the plaintiff when he realized plaintiff was the object he saw on the walkway, and he used the brake handle to place the train into emergency (121, 143-4); he did not see the other youths and his headlights did not illuminate the catwalk (121, 142). George Gonzalez, a road car inspector, stated that the cars were 51.4’ long and there were blood and smudge marks on the tripcock of the lead car only (156-61). Thomas Murray, a patrol 3 If plaintiff’s “running speed” was not included in the accident reconstruction analysis performed by plaintiff’s expert, the accident would have been unavoidable. 7 supervisor, testified that Maxwell told him he did not see the men until he was passing them because they were hidden (174-8). Alphus Rhobb testified that the headlights on the train Maxwell was operating projected 150’ onto the rails and illuminated the side of the roadbeds and the tracks (217-8, 224-5). An operator driving from 33rd to 40th Street should have been able to see the signal and scan the roadbed for obstructions (227-8). If a motorman sees an obstruction he should slow down, determine what it is, and then stop (230-1). Based on a hypothetical, if the headlights projected 150’ and the operator did not see four males running until he was passing them, after which the train went into emergency, the operator did not see what was there to be seen (233-4). In Soto, Mr. Bellizzi gave detailed testimony concerning the configuration and lighting of the station (403-22). A train traveling 25 mph covers 36.65’ per second and should stop within 180’ after it brakes. Based on a one second reaction time, Maxwell should have been able to stop within 216.65’. If plaintiff was running 7 mph, he would cover 10.62’ per second; at 8 mph, 11.7’ (83-84, 429-33, 425-55). If the train left the station at 25 mph, the headlights projected 151.5’ illuminating the catwalk, the last boy was within the illuminated area, the operator saw the need to stop and took one second to react, the brakes worked, and plaintiff was running at 8 mph, he testified that Maxwell should have stopped 51’ before the plaintiff. At 7 mph, the train should have stopped 37’ behind him (458-9. 469-70). Of course, these figures are far less favorable to the plaintiff than the evidence set forth on this record because in Soto Maxwell’s negligence was based on his inability to stop the train 37’ to 51’ from where the plaintiff was actually struck. Accordingly, the majority erred in Obey when it spoke of the conclusory testimony of plaintiff’s experts, asserting that it was insufficient even if Lopez had 3.5 seconds to react if he saw the sneakers at the 150’ outer range of the headlights, because there was no evidence that Lopez actually saw the sneakers from 150’ away. Indeed, the majority, taking up the role of defense counsel, speculated, “perhaps Lopez observed the sneakers from 100’ distance and had a little over one second to react, a reaction time we found insufficient to impose liability in Dibble.” However, this Court in Soto deemed the one-second reaction time appropriate. The Appellate Division, of course, lacks authority to overrule decisions of this Court; it must follow them until they are overruled or modified, under principles of comity. See, Mountainview Coach Lines v. Storms, 102 AD2d 663 [2d Dept. 1984]. The First Department has held that “Trial courts are without authority to vacate or modify orders of the Appellate Division, or to reverse holdings of this Court” (Maracina v. Schirrmeister, 152 AD2d 502-3 [1st Dept. 1989]); this applies to all lower courts in relation to higher courts (McKenna v. Nassau Co., 61 NY2d 739 [1984]; Brown v. Brown, 169 AD2d 487 [1st Dept. 1991]; New Hampshire Ins. v. Bobak, 72 AD3d 12647 [4th Dept. 2010]; Weiner v. Weiner, 10 AD3d 362 [2d Dept. 2004]. Plaintiff submits that it was not “mere speculation” for plaintiff to posit, “when Lopez actually observed the sneakers”, and that there was more than a “scintilla of competent evidence pointing to Lopez actually observing the sneakers while he had sufficient time to react.” 8 The dissent found that there was sufficient evidence to support the conclusion that Lopez’s train struck the plaintiff. It also found that there was sufficient evidence to support the jury’s finding that Lopez was negligent in his operation of the train. Lopez failed to operate the train in a reasonable manner after seeing “evidence of a human presence on the tracks (white sneakers) and failing to take action to avoid the plaintiff although he was able to do so.” Dibble had limited precedential value based on its “unique” facts; the reasoning of the majority would eviscerate Soto. The dissent, unlike the majority, discussed the evidence properly, giving due regard to the rights of a party that prevailed at trial. The dissent noted that plaintiff could not recall how he wound up on the subway tracks, though he admitted he had been at a methadone clinic. The jury found him comparatively negligent and assigned 60% liability to him. The TA moved to set aside the verdict based on Dibble, arguing that the operator had no prior warning of a person on the tracks so defendant was not negligent as a matter of law. As in Soto, defendant claimed the expert testimony was speculative. The dissent properly observed that a jury verdict should not be set aside based on legal insufficiency unless “there is simply no valid line of reasoning and permissible inferences which could possibly lead rational [jurors] to the conclusion reached by the jury on the basis of the evidence presented at trial.” The dissent also observed that a court “should not interfere with the jury’s factfinding function simply because it would have evaluated credibility differently”; the jury may accept or reject expert testimony in whole or in part, and the testimony is not speculative if based on facts in the record or otherwise known to the expert. Here, the record presented “sufficient facts to uphold the jury’s determination.” Construing the evidence in a light most favorable to the plaintiff, the dissent wrote that despite plaintiff’s limited recollection, the trial evidence “sets forth in reasonable detail the events of that morning.” To be more specific, Lopez testified that while the train was in braking mode but not yet stopped, he saw something on the tracks that looked like white sneakers. In his deposition, he testified that as he approached the station at 25 mph, he began to brake about two cars into the station, slowing the train to 10-15 mph; he saw sneakers about 35’ away from the 10 car marker where he was required to bring the train to a complete stop, but he did not apply the emergency brakes then. He did not do so every time he saw debris on the roadbed. While plaintiff was on the track, Lopez proceeded to the next station, though he could not see the sneakers when he glanced out the window. In a TA Incident Report, Lopez is said to have contacted the control center at 11:56 to report that he thought he had seen “a body at the south end of Track #1” at the 33rd Street Station”; Lopez called again at 12:15 and reported that “as he was entering 33rd Street he thought he might have seen something between the running rails; since his train did not go into emergency, he did not investigate any further.” After thinking about it, he then called a supervisor to “caution the next train.” This supports plaintiff’s assertion that the entries are inculpatory.4 While Lopez at trial denied making either statement to the TA supervisors, the jury 4 See, Weigand v. United Traction, 221 NY 39 [1917]; Blake v. Albany, 48 NY2d 875, 877 [1979] (Failure to find a condition by inspection can be just as negligent as failure to respond to actual notice); Rogers v. Dorchester Assoc., 32 NY2d 553, 406 [1973]; Havas v. Victory Paper, 49 NY2d 381, 386 [1980]. In fact, the “risk reasonably to be 9 was justified in believing the statements in the report, which were made under the stress of the event at a time when he had no motive to falsify. See, Flynn v. MABSTOA, 9 AD2d 617 [1st Dept. 1985], affd. 61 NY2d 769 [1984]; People v. Caviness, 38 NY2d 227, 230-1 [1975]. The report noted that at 1:07 a large pool of blood was found near marker 138+00 with traces on markers 44 and 45. The majority emphasized that no blood or tissues were found on Lopez’s train, but plaintiff’s expert testified that the weight of the train and the heat near the wheel, which could reach 600 degrees, would have cauterized plaintiff’s wound on contact (517). The dissent wrote that a substance that “appeared to be blood” was cleaned from Correa’s train which traveled through the station just before Lopez’s train entered; the substance was never tested (513-16). Correa denied seeing anyone fall on the tracks in front of him when he entered the station, for if he did he would be required to stop the train. And the operator of the train that followed Lopez “discovered the wounded plaintiff on the tracks when passengers on the platform began frantically waving their arms to get her attention as her train entered into the station.” The dissent believed that the evidence “provided a sufficient basis for the jury to have rationally concluded that it was the train operated by Lopez that actually struck plaintiff.” Lopez denied that he saw a person on the tracks or that the sneakers were anything other than debris, but “the jury was free to reject his testimony, especially in view of the fact that the entries in NYCTA’s incident report were at odds with Lopez’s account.” The jury could also conclude that it was “unreasonable for Lopez to have thought that the pair of white sneakers he saw on the tracks was simply debris and not evidence of a human presence.” Correa’s testimony that he saw nothing untoward supported the jury’s finding that Lopez’s train actually struck him. And the jury could reject the assertion that the untested material on Correa’s train was human blood. Kim v. TA, supra, was “easily distinguishable.” There, a 911 operator relayed a call to the TA that a passenger on a train had seen a person on the tracks at 34th Street and 8th Avenue, but the call was made after the passenger reached his destination 18 minutes later. The TA issued a “caution” to train operators to slow down to 10-15 mph. During the 18 minutes, a number of trains passed through the station. After the accident, the trains were inspected but none had signs of having struck the plaintiff. The First Department reversed the order of the trial court which denied the TA’s motion to set aside the verdict, vacating the verdict and dismissing the complaint, on the ground that plaintiff’s proof was insufficient to establish a prima facie case. The court noted that plaintiff’s expert testified that the TA should have issued a caution based on the expert‘s personal impression. In this case, Correa’s testimony that there was no person on the tracks permitted the conclusion that plaintiff was not on the tracks when his train passed through the station. The majority’s conclusion that plaintiff failed to submit evidence that the operator should have stopped the train before striking him was also incorrect because a train operator may be negligent if he or she sees a person on the tracks under such circumstances that he or she should have been able to stop before striking the person. A jury can rely upon an expert’s mathematical calculations in this regard where it is based on facts in the record or his personal knowledge. This was permitted in Soto based on plaintiff’s estimate of his own running speed. perceived defines the duty to be obeyed, and risk imports relation” (Palsgraf v. LIRR, 248 NY 339, 344 [1928]). This applies to a subway motorman pursuant to Soto and its progeny. 10 Dr. Berkowitz testified that he visited the station, took measurements, examined documents and photographs including reports of the accident; he also reviewed the TA’s emergency braking stopping distances for customer’s chart, similar to Mr. Bellizzi in Soto. Here, the chart showed, consistent with scientific principles, that at slower speeds less distance is needed to stop a train. Based on the length of the station, and where blood was found, plaintiff was struck approximately 98 feet from the front of the platform, or 414.5’ from the north portal of the station. Dr. Berkowitz estimated that, assuming Lopez was correct about his speed of entry, 25 mph, the train would have stopped at 180’. At 36 seconds per foot, Lopez had 6.52 seconds to act and avoid hitting plaintiff. At 15 mph when approaching the 10 car marker, the train would have stopped sooner and Lopez would have had 8.42 seconds to activate the emergency brakes. This Court should take note of this testimony and how much stronger it is for the plaintiff than the evidence deemed sufficient in Soto. The majority’s exculpation of Lopez as a matter of law amounts to an overruling of jurisprudence from this Court that has existed unbroken for well over 50 years. See, Clarke v. NYC, supra; Noseworthy v. NYC, supra; Coleman v. TA, supra. The Appellate Divisions have adhered to this precedent. See, Santiago v. NYCTA, 271 AD2d 675 [2d Dept. 2000]; Driscoll v. NYCTA, 262 AD2d 271 [2d Dept. 1999]; Stephens v. TA, 19 AD3d 583 [2d Dept. 2005]; Cintron v. TA, 22 AD3d 248 [1st Dept. 2005]. That plaintiff may have been intoxicated or under the influence of drugs or alcohol does not negate his claim (Soto v. NYCTA, supra; Ellison v. NYCTA, 63 NY2d 1029 [1984]). Dr. Berkowitz testified based on evidence viewed by the jury, and his own knowledge; the jury was entitled to weigh the evidence and make determinations based on its evaluation of the propriety of the testimony. See, Cassano v. Hagstrom, 5 NY2d 643 [1959]. Expert opinion need only be “fairly inferable” from the evidence. See, Tarlowe v. Metropolitan Ski Slopes, 28 NY2d 410, 414 [1971]. Circumstantial evidence, of course, is not disfavored as a support for a jury verdict (Burgos v. Acqueduct Realty, 92 NY2d 544 [1998]) and may even be stronger than direct evidence (People v. Geraci, 85 NY2d 359, 369 [1995]; see generally, Caraballo v. Paris Maintenance, 2 AD3d 275-6 [1st Dept. 2003]). Here, the dissent rightly pointed out that Dibble was being cited for the general proposition that calculations about emergency stopping times of trains were speculative, but Dibble should be limited to its facts and not read to preclude such evidence in every situation. In Dibble, the operator applied the emergency brakes when he first noticed what he thought was a human being on the tracks; plaintiff’s expert opined that he had not reacted fast enough and should have stopped before striking the plaintiff, based on an assumption that average reaction time for train operators was faster than this operator’s actual reaction time. The First Department found that these estimations had no basis in the record, and would not impose liability because some train operators react faster than others. At bar, there was no dispute that Lopez did not engage the emergency brake at all. Reaction times were thus far less relevant because the gravamen of plaintiff’s claim was that Lopez was negligent in not seeing plaintiff at all. The dissent observed that reading Dibble as the majority did would make it impossible for a plaintiff to prove liability based on a train operator’s failure to stop, which would be “in 11 contravention of the Court of Appeals’ authority” on point. The dissent’s analysis, of course, was spot on. Lopez’s failure to see plaintiff on the tracks fully supports the jury’s verdict, and Dibble could not be read to rule out expert testimony employing mathematical modeling involving stopping distances and reaction times, an issue conclusively settled in Soto and its progeny. The dissent was wrong, however, in attempting to justify Dibble, which, we submit, is wrongly decided. As stated previously, our office took over the handling of the appeal after the Appellate Division threw out the verdict. In our leave application, we noted that the First Department essentially overruled the analysis of this Court in Soto (Affirmation, par. 4). The assertion that reaction times could not be used because they did not match a specific individual is, quite frankly, a distortion of common law precedent, which holds that the “reasonable man standard” is objective, not subjective. In Mertz v. Conn Co., 217 NY 475, 477 [1916], this Court, citing to The Germanic, 196 US 589, 596 [1905], declared: “Negligence must be determined upon the facts as they would appear to the typical prudent and competent man, not upon the personal judgment of the man concerned.” See, Maguire v. Barrett, 223 NY 49 [1918]; Williams v. Hayes, 143 NY 442 [1894]. The Dibble opinion is plainly wrong because it engages in blatant fact-finding and construes the evidence in a light most favorable to the defendant. In Dibble, the First Department noted that plaintiff’s expert, Mr. Bellizzi, “was not asked to apply, and did not apply, a four second reaction time to his original scenario where the train was traveling at 24 mph. In such scenario, [the motorman] would have traveled approximately 141’…before he applied the brake, and a further 167’ of braking distance for a total stopping distance of approximately 308’, whereupon he would have unavoidably hit the plaintiff.” Non-suiting the plaintiff because Mr. Bellizzi did not use an incredible “four second reaction time”, though this Court held that a one second reaction time was appropriate in accident reconstruction analysis involving the negligence of motormen, is contrary to reason. The First Department itself has approved one and two second reaction times in such cases. See, Lucas v. NYSTA, 163 AD2d 21 [1st Dept. 1990]; Rivera v. NYCTA, 161 AD2d 132 [1st Dept. 1990], revsd. 77 NY2d 322 [1991]; Kim v. Stevens, supra. The majority in Dibble pointed out that despite the motorman’s testimony, the evidence “strongly suggests that the debris that [the motorman] first saw was not, in fact, the plaintiff whom he struck 40’ further along” (76 AD3d at 277-8). This shows that the First Department engaged in pure issue determination and did so in a way that discounted plaintiff’s evidence and gave credence to that of the defendant, though plaintiff was the prevailing party at trial. No doubt this Court’s prompt grant of leave to appeal in Dibble reflected the multiple factual and legal problems with the case. The Dibble court wrongly stated the reasonable man standard and it contravened this Court’s decision in Soto, which held that a motorman is liable for failing to bring his or her train to a stop before striking a plaintiff on the track where it was reasonable to do so, and that expert testimony of the type performed by engineers and accident reconstructionists was a completely proper method of establishing a prima facie negligence claim. Plaintiff submits that the TA was wise to settle Dibble shortly after this Court granted leave, given the high probability that the Appellate Division decision would have been reversed. In this regard, plaintiff would certainly accept the holding of the dissent limiting Dibb]e to its facts, but plaintiff believes that the case was wrong]y decided, and has led to a series of decisions that contravene this Court' s jurisprudence. See, Mirjah v. NYCTA, 48 AD3d 764 [2d Dept. 2008]. Accordingly, it would be far better for this Court to state unequivocally that Dibble's preference for a subjective reasonable man standard cannot represent the law and should not be followed. After all, "Only a jury is constitutionally endowed with the right to pass on conflicting evidence, as wel1 as the credibility of witnesses" (Wragge v. Lizza Asphalt, 17 NY2d 313, 319 [1966]; Swensson v. NY Albany Despatch, 309 NY 497, 505 [1956]). Finally, this Court should reaffirm its holding in Soto that accident reconstruction testimony employed by a plaintiff to establish that a subway accident is preventable cannot be overturned as speculative on appeal where the evidence is based, in large mea.-;ure, on the admissions of defendant and the tatters employees and agents as we11 as other record evidence. See, Adamy v. Ziriakus, 92 NY2d 396 [19981. When properly construed, the majority opinion in Obey repudiates the "should have seen" standard that has been employed for over 50 years in detennining the liability of a subway operator, replacing it with a standard that requires the court to accept the motorman's testimony about when he actually saw the victim on the tracks. This amounts lo a "get out of jail free" card in which it will be all but impossible for any plaintiff to esrablish liability in a case of this ilk. This Court should not allow the Appellate Division to repudiate the propriety of the precise analysis it approved in Soto. Conclusion Based on the foregoing, this Court should reverse the Appellate Division and reinstate the jury verdict on liability, remitting the case to the Appellate Division to consider those issues that were not previously decided. cc: By e-mail and Regular Mail Lavvrcncc.Hcislcr@ N YCT.com Lawrence Heisler, Esq. Attorney for Defendant-Respondent New York City Transit Authority 130 Livingston Street, Rm. 1147 Brooklyn, NY 11201-5190 Very truly yours, A~/ Brian J. Isaac 12 13 Certificate of Compliance It is hereby certified pursuant to 22 NYCRR §500.11(m) that the foregoing letter brief was prepared on a computer. Type: A proportionally spaced typeface was used as follows: Name of typeface: Times New Roman Point size: 12 Line spacing: Double Word Count: 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 authorities, proof of service, certificate of compliance, or any authorized addendum containing statutes, rules, regulations, etc. is 6,880. Dated: New York, New York November 10, 2016 AFFIPA,YIT OF SERYI~EYIA EMAil,; STATE OF NEW YORK ) ss.: COUNTY OF NEW YORK ) Danielle Henderson, being duly sworn in, deposes and states that on the 11th day of November, 2016, she served the Plaintiff-Appellant's Letter Memorandum 500.11 Statement. A true and con·ect copies via email to: Lawrence Heisler, Esq. Lawrence,l::!s;!~L~@NYcT.com Attorney for Defendant-Respondent New York City Transit Authority 13 0 Livingston Street, Rm. I 14 7 Brooklyn, NY 11201-5190 The last known email addresses of said addressee. Sworn to before me this 11 u, day ofNovember, 2016. Danielle Henderson BRlAN J.lSAAC NOTARY PUBLIC, State of New York No. 02!84920550 Qualified in Nassau County Comrrnssion Expires April 2, ~ 20 1q