Rosemond Barney-Yeboah, Respondent,v.Metro-North Commuter Railroad, Appellant.BriefN.Y.March 27, 20151 Numerical references preceded by an “R” refer to the Appellate Division Record on Appeal. Paul A. Krez Edward A. Flores Edwin H. Knauer † Joseph M. Hiraoka, Jr. William J. Blumenschein " _______ N. Jeffrey Brown Î Alexandra Vandoros Karen S. Drotzer Virginia Gillikin KREZ & FLORES, LLP COUNSELLORS AT LAW 225 BROADWAY, SUITE 2800 NEW YORK, NEW YORK 10007-3001 (212) 266-0400 E-mail: mail@KrezFlores.com Fax (212) 724-0011 _______ † Admitted in NY & NJ Î Admitted in NY, NJ & OH " Admitted in NY & VT January 8, 2015 State of New York Court of Appeals 20 Eagle Street Albany, New York 12207-1095 Attn: Andrew W. Klien, Clerk of the Court Re: Barney-Yeboah v. Metro-North Commuter Railroad APL-2014-00314 LETTER BRIEF May it please the Court: We represent the defendant-appellant in the above-captioned matter, and we respectfully submit this letter brief in support of appellant’s position and as directed by this Court pursuant to section 500.11 of this Court’s rules. Additionally and pursuant to this Court’s rule 500.11(f), we request that arguments defendant made in the Appellate Division brief be considered by this Court. PRELIMINARY STATEMENT On July 13, 2009, it is alleged that while she was a passenger on defendant’s commuter train on her way to work during rush hour, a ceiling access panel swung open on its hinge and struck the plaintiff on the head, causing injury (R. 43).1 Barney-Yeboah v. Metro-North January 16, 2015 Page 2 On June 20, 2012, plaintiff moved in the Supreme Court, New York County, for partial summary judgment on the issue of liability arguing that the theory of res ipsa loquitur applied and that, therefore, there were no questions of material fact on the issue of liability for a jury to determine. The Court (Madden, J.) found that the alleged offending instrumentality, a ceiling access panel located in the passenger section of defendant’s rail car and accessible to anyone, could not be said to have been in the defendant’s exclusive control as a matter of law. In its decision dated January 7, 2013, the Court agreed that res ipsa loquitur was a viable theory in the case, but held that it only provided an inference of negligence that the jury could draw and did not establish liability as a matter of law(R.8-14). By Notice of Appeal and Pre-Argument Statement dated February 6, 2013, plaintiff asked the Appellate Division, First Department, to reverse the lower court, arguing that the doctrine of res ipsa loquitur mandated the granting of plaintiff’s application for summary judgment(R.1-5). In a decision dated September 4, 2014, that Court, with one Justice dissenting (DeGrasse, J.), made several questionable factual determinations and reversed the lower court, granting plaintiff’s motion for summary judgment on liability. In his dissenting memorandum, Justice DeGrasse noted that the ceiling panel in question was located in the passenger compartment of a then crowded commuter train and had been accessible to the riding public. He noted that the evidence showed that the panel could have been loosened with the use of a standard flathead screwdriver. Indeed, common sense dictates that a coin, or for that matter, any object that could fit in the slot of a flathead screw, could be used as well. He further pointed out that the two cases heavily relied upon in the majority opinion were inapposite, in that neither case removed the liability determination from the jury. In Pavon v. Rudin, 254 A.D.2d 143 (1st Dept. 1998), the Court reversed the granting of summary judgment to a defendant, holding that the Barney-Yeboah v. Metro-North January 16, 2015 Page 3 case could go to a jury on the theory of res ipsa loquitur. Similarly, in Nesbit v. New York City Tr. Auth., 170 A.D.2d 92 (1st Dept. 1991), the case in fact went to the jury on a theory of res ipsa loquitur. The appeal concerned the trial judge’s setting aside of the jury’s verdict for the plaintiff and directing a verdict for the defendant. Concluding his dissenting memorandum in the case at bar, Justice DeGrasse stated: “...this case should not have given us occasion to depart from the general rule that ‘only in the rarest of res ipsa loquitur cases may a plaintiff win summary judgment or a directed verdict’(Morejon v. Rais Constr. Co. 7 N.Y.3d 203 [2006]).” The Appellate Division also mistakenly decided that defendant “conceded” the first element of the res ipsa loquitur doctrine that “the accident is of a kind that ordinarily does not occur in the absence of defendant’s negligence,” when defendant conceded nothing of the sort. Indeed, defendant argued that it was likely that the accident was caused by the malevolent action of a third party. By order dated December 4, 2014, the Appellate Division granted the defendant leave to appeal to this honorable Court and certified the following question pursuant to CPLR 5713: “Was the order of this court, which reversed the order of the Supreme Court, properly made?” It is respectfully submitted that the Appellate Division erred in reversing the lower court; improperly made findings of fact as a matter of law; and, improperly removed the issue of liability from jury determination. Accordingly, the question certified should be answered in the negative. Barney-Yeboah v. Metro-North January 16, 2015 Page 4 STATEMENT OF FACTS Plaintiff alleges that on July 13, 2009, at approximately 6:25 a.m., an overhead utility cabinet door, in the train car in which she was riding, swung open striking her in the head (R.35-36,43). She initially stated to the responding police officers that: “...she had been walking in the aisle of the train, preparing to Exit at Croton-Harmon station,” when a “...service panel from the train’s ceiling broke free hitting her on the top of the head” (R.34). By the time the plaintiff’s Notice of Claim was prepared by counsel and signed by the plaintiff, her version of the incident changed and the plaintiff was now claiming that: “Plaintiff was sitting in commuter chair at the time of this accident” (sic) (R.36). An alleged witness to the event was one Julia Alava. When asked how she knew Ms. Alava, the plaintiff testified that “We would sometimes just meet on the tracks going to work” (R.173, lines 12-14). When Ms. Alava was deposed, she also contended initially that she only knew the plaintiff from traveling together daily from Peekskill to Croton-Harmon (R.309, lines 11-15). However, upon cross-examination, Ms. Alava divulged the fact that her daughter went to the same school as plaintiff’s daughter and they would see each other at school functions such as concerts (R.35-36). Additionally, Ms. Avala testified that she would take her daughter to the same public swimming pool as the plaintiff, where their respective daughters were learning how to swim (R. 340, lines 6-15). Further, Ms. Avala knew plaintiff’s phone number because she called the plaintiff after the accident to find out how she was doing (R.343, lines 9-12). Ms. Alava testified that although she was not looking at the plaintiff, she “...heard something that hit her [the plaintiff’s] head” (R.315, lines 13-17). Ms. Avala then testified that she saw the accident in her peripheral vision (R.12, lines 21-25 to R.13, lines 1-10). She testified that the panel was not completely down Barney-Yeboah v. Metro-North January 16, 2015 Page 5 (R.335, lines 2-6). She testified that as a result of being struck by the panel, the plaintiff was thrown to her knees (R.315, lines 15-17). Another passenger on the train, Robert J. Burke, testified at a deposition in this case as well. Mr. Burke had also boarded the train with the plaintiff and Ms. Avala at the Peekskill station (R. 231, lines 12-21). The train originates in Poughkeepsie (R.390). He stated that the train was “fairly crowded”(R.233, line17). Contrary to the testimony of the plaintiff and Ms. Avala, Mr. Burke testified that plaintiff was not propelled to the floor. Rather, he stated that when the panel struck the plaintiff she was not moving and: “...her head was leaning forward and to the side a little bit. So I got up and two other gentlemen, who were in these seats, these forward and backward facing seats, went over to the panel and lifted it off, so that it wouldn’t be resting on her head”(R.239, line 21 to 240, line 5). No step ladder was necessary to reach the panel. Although plaintiff never touched the panel before it fell according to Ms. Alava (R.329), anyone else could have at any time during the run or before. Curiously, although he was several rows behind the plaintiff (R.233), and diagonally on the opposite side of the aisle from her - she was to his right - (R.273-274) and he was talking to a gentleman to his left, Mr. Burke claims to have witnessed the incident because: “I was very observant of what was going on” (R.235, lines 5-7). Jack Curtiss gave testimony on behalf of the defendant. At the time of his deposition he was a general foreman (R.361, lines 24- 25) and had been working for Metro-North on the Hudson line for twenty-two years, seven as a foreman and fifteen as an electrician (R.362-363). He explained that the panel in question is fastened in place with four quarter-turn screws, and two safety latches (R.369). The quarter-turn screws are not threaded screws. Rather, they are screws which have two tabs on them and they fit into a fastener. The screw is turned a quarter turn (90°) and it locks when the tabs on the screw pass the slots in the fastener which Barney-Yeboah v. Metro-North January 16, 2015 Page 6 accept those tabs (R.404, lines 14-19). There is also a safety chain, but the safety chain does not prevent the panel from opening. It merely prevents the panel from swinging all the way down, past 75 degrees(R.376, lines 3-13; 396 lines 11-16). This is what kept the panel from being completely down as witnessed by Ms. Avala (R.335, lines 2-6). The screws are turned using a standard screwdriver (R.403, lines 6-12). The safety latches are disengaged by hand without any special tool, similar to disengaging the safety latch on your automobile hood (R.402-403). There is no maintenance facility in Poughkeepsie. The panel would only have been accessed by Metro-North personnel at Croton-Harmon, or in the Bronx at defendant’s Highbridge facility (R.390-391). Following the incident, the ceiling panel was secured back up by a crew from Croton-Harmon (R.31,406). When an incident involving an alleged injury occurs, an inspection by a three-man team is undertaken and was, in fact, performed in this case (R.31,405). The three-man inspection team found that “...everything was working as intended”(R.31). There were no missing or broken latches, screws, fasteners, etc. It is clear that no part “failed.” Mr. Curtiss never saw or heard of a ceiling panel swinging down before (R.389); could not explain how all the safety devices could fail at once; and, in fact, did not believe that they could all fail at once(R.419). Indeed Mr. Burke, Ms. Avala and the plaintiff, all daily commuters for many years, also never saw a ceiling panel swing down before (Burke: R.259; Avala: R.319; and, Plaintiff: R.125). ARGUMENT The lower court erroneously made a determination that the defendant had exclusive control of the ceiling panel in question and that defendant was negligent. Barney-Yeboah v. Metro-North January 16, 2015 Page 7 The possibility that all safety devices failed at the same time is significantly remote. What are more likely possibilities are that either a vandal tampered with the screws and latches, or defendant’s employee negligently (or intentionally) failed to properly engage the screws and latches; either way, it should be a question of fact for a jury. As stated by this Court in George Foltis, Inc. V. City of New York, 287 N.Y. 108, 118 (1941): “If conflicting inferences may be drawn, choice of inferences must be made by the jury”.[see also Kambat v. St. Francis Hospital, 89 N.Y. 2d 489, 495 (1997)]. When third parties have access to the offending instrumentality, the premise that an injury was cause by the owner’s neglect should not be inferred. DeWitt Properties, Inc. v. City of New York, 44 N.Y.2d 415, 427 (1978). Nevertheless, the Appellate Division made a factual determination that it was the latter possibility. As aptly stated by Justice DeGrasse in his dissent, “...the majority’s grant of summary judgment in favor of the plaintiff amounts to a finding that defendant’s negligence is the only possible cause of the accident. In my view, such a finding is not supported by the record. In addition, the instant motion...does not call for a determination of which party has proffered the more ‘logical conclusion’ as the majority seems to suggest. The question is whether there exists a triable issue of fact.” While the theory of res ipsa loquitur may arguably be applicable, it should only be submitted to a jury as an inference that they can accept or reject along with all the other evidence presented at trial, if they find that plaintiff has proved all three elements the theory requires, to wit: the accident is of a type that does not occur in the absence of negligence; it must have been caused by an agency or instrumentality within the exclusive control of the defendant; and, it must not have been due to any voluntary action or contribution on the part of the plaintiff. Dermatossian v. New York City Tr. Auth., 67 N.Y.2d 219, 226 (1986). Barney-Yeboah v. Metro-North January 16, 2015 Page 8 As this Court has consistently stated, summary judgment based on res ipsa loquitur should only be granted in the rarest of cases. Morejon v. Rais Const. Co., 7 N.Y. 3d 203,209(2006); Foltis, supra at 122. This is not one of those cases. The ceiling panel in question was located in the public section of a commuter rail car traveling between Poughkeepsie, New York and Grand Central Terminal in Manhattan. Hundreds of people had easy access to the panel on a daily basis and no special tools or expertise was needed to tamper or interfere with its safety mechanisms and no step ladder was needed to reach the panel. As such, there was no “...control by the defendant ‘of sufficient exclusivity to fairly rule out the chance that [the defects were] caused by some agency other than defendant’s negligence.’” Ebanks v. New York City Transit Authority, 70 N.Y.2d 612, 623 (1987), citing Dermatossian v. New York City Tr. Auth., 67 N.Y.2d 219, 228(1986). Clearly, it cannot be said that the “... probability that the negligent act was caused by someone other than the defendant is so remote that it is fair to permit an inference that the defendant is the negligent party.” Feblot v. New York Times Company, 32 N.Y.2d 486, 496 (1973). For the foregoing reasons, the decision of the appellate division should be reversed and the decision and order of the Supreme Court, New York County (Madden, J.) reinstated. Respectfully submitted, Krez & Flores, LLP Attorneys for Defendant-Appellant __________________________ Paul A. Krez cc: Buttafuoco & Assocs., PLLC Attorneys for Plaintiff-Respondent 144 Woodbury Road Woodbury, NY 11797-1418