130 Livingston Street
Brooklyn, NY 11201
e New York City Transit
VIA OVERNIGHT DELIVERY
Veronique Hakim
President
June 23, 2016
John P. Asiello, Chief Clerk and Legal Counsel to the Court
Court of Appeals ofthe State ofNew York
Court of Appeals Hall
20 Eagle Street
Albany, New York 12201-1095
Re: Miriam Levy Oates v. New York City Transit Authority, et al.
APL-2016-00090
Bronx County Index No.: 302214107
Dear Mr. Asiello,
In this wrongful death and survival action, the New York City Transit
Authority (the "Authority"), appealing as of right, urges this Court to reverse the
Appellate Division, First Department, 1 and dismiss plaintiffs suit. The Authority
argues, in accord with the Appellate Division dissenters, that plaintiff failed to make
out a prima-facie case of negligence. But if the Court disagrees and allows the liability
judgment to stand, it should dismiss the conscious pain and suffering cause. The
evidence failed to support the claim, and no rational jury could conclude otherwise.
REASONS WHY THE APPELLANT OBJECTS TO SSM
TREATMENT OF THIS APPEAL.
The Court has opted, initially, to consider this appeal under its expedited SSM
procedure. For the following reasons, we respectfully suggest why the case deserves
full briefing and argument.
First, contrary to the impression one may gather from reading the decision
below, particularly the dissent, the case is not bristling with an array of competing
factual scenarios. All one needs to know are the following uncontroverted facts:
On liability: decedent was found 4-5 feet in the roadway, face down, dead,
outside an Authority bus stop in the Bronx. No one witnessed the accident; the driver
of the bus that ran over decedent had no knowledge of it; nor did any of the riders on
board.
1 See Levy-Oates v. New York City Tr. Auth., 138 A.D.3d 470 (1 81 Dept. 2016)
MTA New York City Transit is an agency of the Metropolitan Transportation Authority, State of New York
58-03-6130 12/15
Re: Miriam Levy Oates v. New York City Transit Authority, et al.
APL-2016-00090
Page2
On Conscious Pain and Suffering: This issue draws on an even more condensed
factual kernel. No one saw the bus striking decedent, who was dead when medical
personnel arrived on the scene. Nor was any autopsy performed.
The Significance of the issues: The issues at stake here are not commonplace,
dealing as they do with difficult questions of burdens of proof: How much-or how
little- must a plaintiff show to make out a claim for wrongful death or conscious
pain and suffering? The case also touches on the parameters of expert testimony, as
well as complex issues of evidence.
The Court's recent trend in addressing recurring tort issues: Recently, this Court has
considered and clarified a number of bread-and-butter tort issues, including the
"trivial defect" doctrine and the "storm in progress" doctrine.2 The issues here,
touching on life and death questions, albeit in a civil context, deserve a full hearing.
QUESTIONS PRESENTED
• Whether plaintijj: even aided l?J the Noseworthy doctrine, made out a case ofnegligence.
Plaintiffs who prosecute wrongful death suits confront an obvious handicap-
their decedents have died, depriving them of potentially crucial testimony. The law
takes account of this reality, by providing that a wrongful-death-plaintiff is not held to
as high a degree of proof as a typical plaintiff. Noseworthy v. City of New York, 298 N.Y.
76 (1948).
The Noseworthy doctrine aims to level the playing field. Nothing more. It does
not shift the burden of proof. Nor does it relieve plaintiff of the obligation to prove
that defendant was negligent.
Here, plaintiff's decedent was struck by an Authority bus. That one brute fact is
all we know. Nothing more. No one, not the driver, not any passengers on the bus,
knew what happened.
The key question presented by this case is the following:
Did plaintiff, as the majority held, prove a prima-facie
case of negligence? Or, in line with the dissenters' view, did
she fail to make out a case?
2 Hutchinson v Sheridan Hill House Corp., 26 N.Y.3d 66 (2015); Sherman v New York State Thruway Auth., 2016
NY Slip Op 03546 (May 5, 2016).
Re: Miriam Levy Oates v. New York City Transit Authority, et al.
APL-2016-00090
• Whether plaintijfproved that decedent sustained af!Y conscious pain and suffiring.
Page 3
To recover for decedent's conscious pain and suffering, plaintiff was required
to show that decedent was conscious and cognitively aware before she died. But no
one saw how decedent died. Nor did anyone one perform any forensic tests that
might have revealed whether decedent was conscious at any point immediately before,
during, or after she wound up under the bus. Was plaintiff entitled to recover for
decedent's conscious pain and suffering? No.
INTRODUCTION AND SUMMARY OF ARGUMENT
Rachel Levy was found lying face down, 4-5-feet in the roadway, outside a
Bronx bus stop, a tire tread running down her back, dead, the victim of a massive
trauma. Police investigators would later discover that decedent had been struck by
the Authority's bus. But beyond that, the evidence plays it close to the vest; it tells us
nothing that would allow a rational jury to find the Authority negligent.
So, the driver had no knowledge of the accident. No one on board the bus, not
one of the approximately 20 passengers, knew anything either. No one saw decedent
before she died. No one knows where she was coming from; no one knows where she
was going; now one knows how she wound up on the roadway.
Yet despite this factual void, a Bronx jury concluded that the Authority's driver
was guilty of negligence. To reach that conclusion, the jury had to be satisfied that the
driver, in the exercise of due care, could have spotted decedent, and could have done
so in time to avoid the accident. No rational jury could reach those conclusions
without guessing or speculating.
Nor could plaintiffs expert, who papered over the gaps in plaintiffs proof,
construct a prima-facie case. That expert, who visited the accident site six years later,
conjectured that decedent had been standing in the stop, when a bus about to pull
out, its front projecting over the curb, struck decedent propelling her into the
roadway, where it ran her over.
The expert's factual premises are flawed; the conclusions he drew from them
amounted to guesswork and speculation. The physical facts and the expert's own
photographs decisively refute them. To take one example, plaintiffs theory required
one to assume that the bus propelled decedent well in front of a pole in the bus stop.
But decedent wasn't found in front of the pole; she was found in back of it.
The Appellate Division dissenters pointed out how implausible the expert's
liability scenario was, while offering an account that more nearly comports with the
proof: decedent, approaching from behind, rushing to catch the departing bus,
slipping under its front wheels, while the driver's view was shrouded by a blind spot.
Regardless of what one thinks of the dissenters' detailed reconstruction,
plaintiffs case fails because her own affirmative account remains speculative. Even
Re: Miriam Levy Oates v. New York City Transit Authoritv, et al.
APL-2016-00090
Page4
aided by the doctrine outlined in Noseworthy v. City of New York, plaintiff failed to make
out a case.
The same conceptual failings plague plaintiff's pain-and-suffering claim. To
prevail, plaintiff had to prove that decedent was cognitively aware of the impending
disaster, before the accident, or was conscious at some point thereafter. Here as well,
plaintiff's proof failed. No one saw decedent before the bus struck her; no one saw
her during the moment of impact; and no one saw her immediately thereafter.
Nothing plaintiff's medical expert said-and his testimony mirrored his liability
counterpart's for its lack of evidentiary support --can change that.
For these reasons, and the reasons we outline below, the Court should fortify
long-standing principles of New York's wrongful death doctrine. It should reject the
majority's refusal to hold plaintiff to her burden of proof. It should dismiss the suit
entirely, or at a minimum, the award for decedent's conscious pain and suffering.
STATEMENT OF THE CASE
A bodv in the roadwav ....r _...
At about 2:39 in the afternoon of October 29,2006, a Sunday, an unidentified
person called 911 with disturbing news. A body was lying on the southbound service
road of the Henry Hudson Parkway, outside the 236th Street bus stop (A-1027; A-
1054).
Emergency personnel arrived within moments (A-1054) and found a woman
dead on the roadway, 4-5 feet from the curb, outside a Transit Authority bus stop.
The woman, short and stout, lay flat on her face, clutching a tote bag in her right
hand, a bag "full of groceries" in her left (See A-1031, A-1049, A-1051). The contents
of the bags were not strewn on the street, and the woman's hands were spread out in
front of her as if she braced herself for a fall. Her head was pointed south, the
direction traffic was headed, her feet at a slant, positioned in a northeast direction (A-
84).
A tire tread ran over decedent's back (A-87, A-1048). It continued onto the
roadway, approximately 4-feet from the curb, running north to south, marked out in
yellow chalk. (See, A-89, A-91-92, A-1060).
A police officer who arrived about an hour later (A-74) photographed the
scene (A-75) and also sketched out its landmarks (A-1067). He placed the body
approximately 5-feet back, or north, of the front of the bus stop pole. More
specifically, decedent's head was positioned 5-feet from the front of the stop, her feet,
twice that distance, about 10-feet back from the front of the stop. See A-1067.
At 2:42, personnel from the medical examiner's office pronounced the woman
dead (A-1030).
Re: Miriam Levy Oates v. New York City Transit Authority, et al.
APL-2016-00090
Pinning the accident on an Authority bus
Page 5
The accident location pointed to an obvious culprit: the New York City Transit
Authority, whose buses, running on the BX-10 line, stopped at the curb. But no driver
had reported any accident; nor had any civilian witnessed any bus striking decedent.
Hoisting the bus and inspecting the undercarriage
Proof that a Transit bus had been involved in a fatality came later in the
evening, at about 7 p.m. at the Authority's Kings bridge terminal. One of the buses
scheduled to travel by the stop in the early afternoon was placed on a lift, and hoisted
in the air. Detective Michael O'Connor, of the Police Department's Accident
Investigation Squad (A-495), inspected all four wheels of the bus. He noted tissue on
the bus's rear wheel (A-497, A-1047). With him was a Detective Reis, who swabbed
tissue samples (A-499), turning them over to the City's Medical examiner and its
Department of Forensic Biology. Nine-months after the accident, the Department
identified the DNA samples, linking it to the person lying prone on the street (A-
1043-1045).
Yet one mystery remained. The exterior of the bus, its front fender and side
panel exhibited no evidence of contact. No, " ... blood, scrapes, fingerprints, smudge
marks, anything to indicate if the bus came in contact with the deceased ... " (See A-
531).
The bus driver's account
Vincent Brady, the Authority driver, whose bus had run over decedent, could
offer little about the particulars of the accident, although he was able to describe his
general routine. On November 26, 2006, Brady was driving on the Authority's BX-10
line, a route he'd been on for about 4-years (A-139). The route would start at 263rd
Street and Riverdale Avenue and end at 206th Street, a trip spanning about 45-minutes
(A-140).
Brady started work that Sunday at about 1 in the afternoon, the tour ending at
10 in the evening (A-177 -178). Before starting his run, Brady would inspect his bus to
make sure it was ready to go (A-177-A-178). He'd look at the mirrors, adjust them if
they needed adjusting (A-178).
The Bus's Blind Sbots
~
The mirrors would allow him to see around the bus, affording him a view of
the area outside. Still, some blind spots obscured his ability to see out of the front,
side and the rear. The fare box and the route sign blocked some of what he could see,
as he peered out through the front, " ... you have the borders of the bus, fare box and
the running route sign ... " (A-179). But the most prominent blind spot would extend
down the outside right side of the bus, 10 feet back (A-180).
Re: Miriam Levy Oates v. New York City Transit Authority, et al.
AP L-201 6-00090
Pulling in and then pulling out ofthe 236th Street stop.
Page 6
Brady recalled pulling into the 236th Street stop sometime in the early afternoon
of October 29,2006 (A-186-A-187). He'd pulled in close to the curb, to allow
passengers to board. He was adamant that the bus's wheels did not mount the curb
(A-186). He thought one passenger boarded, although there might have been more
(A-186).
He began preparing to move out and merge into traffic to his left. First, he
looked into his right side mirror; he saw nothing (A-188). He then checked the mirror
on the left to see if it was safe to pull out. There was traffic on the left (A-188). He
then swiveled to the right again, checking the mirrors; he saw nothing (A-188-A-189).
He closed the doors, put on the left signal, looked in the left mirror again (A-189).
Traffic had cleared. He then pulled out, proceeding into the left travel lane.
The entry into the lane was uneventful; Brady felt nothing, heard nothing. No
one on the bus-and there were perhaps 20 passengers-said a word (A-147, A-189).
Investigators would later track down one passenger on the bus, identified through a
discounted metrocard. That passenger remembered nothing about any accident, either
(A-536).
Decedent identified, and the attempt to reconstruct the accident
The person found lying in the street, face down, clutching a bag of groceries
and a tote bag was the 52-year-old decedent, Rachel Levy. Levy worked as a home-
health-aide for an elderly resident of a large housing development, 3315 Briarcliff on
the Henry Hudson Parkway (See, A-1030). Ms. Levy's shift would end at 2 p.m., at
which time she'd take the Bx-10 at the stop on the service road, before switching to
another bus that would ferry her home (A-34-A-35). That, at least, was the plan, until
it ended in tragedy and Ms. Levy's inexplicable death.
Some facts were incontrovertible; Brady's bus was the one that had run over
her. The DNA analysis confirmed what the gross physical forensics suggested. The
front right tire of Brady's bus ran over decedent. But how and when had decedent
wound up on the roadway? Where had decedent been coming from; where was she
going? Ms. Levy had finished work, or was scheduled to, at about 2 p.m. What had
she been doing in the approximately 35-minutes after she ended her shift and before
she was found, face down on the roadway, dead?
These unanswered questions also touched on Brady's cluelessness about the
accident. Could Brady, despite his protestations of ignorance have spotted decedent in
time to avoid striking her? Given the lack of direct proof, plaintiff built her prima-
facie case on the opinions of an expert.
Re: Miriam Levy Oates v. New York City Transit Authority, et al.
AP L-20 16-00090
Plain tiff's expert attempts to reconstruct what happened
Page 7
Donald Philips, practicing as an engineer largely south of the Mason-Dixon
Line (A-564), visited the accident site in November of 2012, six years after Ms. Levy
died (A-568). He took photographs of the area and its landmarks, and of buses
entering the 236th Street stop (A-1073-A1074).
The area had changed during those six years. Buses no longer stopped at the
light pole depicted in the photographs police took in 2006 (A-571, 572). In the
interim, a new pole, further south had been installed on the sidewalk, one marking the
stop's outer boundary (A-1064).
Still, Phillips thought the key landmarks in 2012, could shed light on the
accident in 2006. Phillips focused on the old bus sign at the south, or front end of the
stop, and the walkway leading down from the development. Phillips assumed that
after Ms. Levy finished her shift, she'd ambled down the walkway from the
development. The walkway was south of the stop, so decedent, heading to the stop,
would be walking north (A-599, A-601). Decedent would arrive at the front, or south
end of the stop, occupying a position, immediately in front of the light pole, which
stood 15-inches away from the curb (A-585, A-1056).
A bus would eventually enter the stop. After picking up passengers, it would
pull out, continuing on its route. But Phillips was convinced that in maneuvering out
of the stop, the bus would expose passengers like Ms. Levy to great danger.
When he visited the stop in November, 2012, he observed a number of drivers,
who brought their buses close to the curb, as they pulled into the stop (A-1073, 1074).
Putting two and two together, Phillips assumed that what he observed, the buses
angling close to the curb represented a deeply rooted Authority policy, reaching back
in time to the date of the 2006 accident. Phillips also noted that bus operator Brady
testified that he'd pull into the stop by lining up close to the curb.
Imprisoned between the pole and the bus's fender.
Phillips offered a reconstruction of the accident. Ms. Levy was waiting at the
stop, standing in front of the pole, 15-inches away from the curb (A-577, A-1073).
The bus, which Ms. Levy, was presumably waiting to board, began to pull out of the
stop. For some unexplained reason, Ms. Levy did not enter it. As the bus pulled away,
its right front fender, projecting over the curb propelled her into the roadway.
Phillips' explanation:
... the body of the bus would have basically trapped
her body between the light pole and the front of the bus and
that's when the projection impact takes place because she
can't back up through the pole. So when the corner of the
bus hits her, it projects her out in the road. That's when she
Re: Miriam Levy Oates v. New York City Transit Authority, et al.
AP L-20 16-00090
gets run over (A -630).
Ruling out other scenarios.
Page 8
To account for his theory, Phillips had to rule out other possible scenarios.
Could decedent have been approaching from the bus's rear and fallen under the front
tire, out of the driver's line of vision? Phillips didn't think so and explained why. The
development where decedent worked was located south of the bus stop. If decedent
had just left work, she'd be headed north toward the front of the stop, not its rear (A-
599, A-601).
PhillitJs on cross-examination
~
Phillips would eventually concede that there were gaps in his knowledge about
the accident. He really didn't know what decedent had been doing in the
approximately 30-35 minutes she left work and the time she was found on the
roadway. More fundamentally, Phillips couldn't explain why decedent, who under his
account, was at the front of the stop, didn't simply board the bus.
Phillips was also frank enough to acknowledge other difficulties with his
conclusion. If the bus's front fender struck Ms. Levy while she was waiting in the
stop, one would expect to fmd evidence of contact marks on the lower portion of her
body, on her legs, her knees her thighs (A-616). There weren't any.
There was also a decided lack of physical evidence to indicate " ... where the
bus actually stopped or started" (A-624).
Phillips also had to explain why none of the investigators found scuff marks on
the front or side of the bus, if his theory that the side of the bus projected decedent
into the roadway (A-617, lines 23-24).
Phillips also tried to account for the contents of the two bags Ms. Levy was
clutching as she lay face down in the roadway. Its contents were undisturbed, not
strewn about. But Phillips did not think that undercut his theory. All it proved was
that the impact that winched decedent off the sidewalk into the roadway was light. In
Mr. Phillips's view, that constituted," ... further evidence of a low speed
knockdown ... " (A-622).
Where was decedent's bocfy after the impact. Phillips's view?
As noted earlier, the police investigator had placed decedent's body behind the
bus pole, 5-10 feet behind or north of it, to be precise. Phillips, to some degree, took
issue with that conclusion. He didn't think that Ms. Levy was that far behind. Rather,
" ... her body was ... three to six feet north [i.e., in back] of the bus stop pole" (A-573,
lines 22-23).
Re: Miriam Leyy Oates v. New York City Transit Authority, et al.
APL-2016-00090
The Authority's expert
Page9
Ali Sadegh, the Authority's expert, a licensed engineer (A-813), raised the same
questions defense counsel did in her cross-examination. But Sadegh raised some
points that would feature in the Appellate Division dissent. Sadegh noted that
decedent had been found some distance north, or in back of the sign-pole. That fact
clashed irreconcilably with plaintiff's central thesis: that decedent had been pinned
between the bus pole and the bus, before the fender propelled her ahead~ into the
roadway.
Decedent's position, behind the pole, undercut plaintiff's liability theory on two
counts. If decedent wound up behind the pole, it hardly made sense to believe that
she'd been pinned between it and the front of the bus (A-831). Similarly, plaintiff's
theory that decedent had been whipsawed into the roadway, landing in front of the
bus, which then ran her over, also failed, if it turned out that decedent wound up
behind the pole, not in front of it. And if, as plaintiff claimed, the front of the bus
struck her, there would have been evidence of it, " ... soot'' or "dirt" (A -831). There
was none.
Sadegh raised a more plausible scenario. Perhaps decedent hadn't been
approaching the bus from the front. Maybe she'd been rushing behind it, trying to
catch up with it, as it pulled away from the stop. Unfortunately, Ms. Levy lost her
balance and fell under the bus's right front wheels (A-826).
Decedent's conscious pain and suffering.
In addition to suing for wrongful death, plaintiff sued the Authority for
decedent's conscious pain and suffering. That last item consisted of two distinct
elements: pre-impact terror as Ms. Levy lay on the ground, the bus rolling toward her,
painfully aware that she faced certain injury or death; and the actual physical pain she
endured, after the bus struck her, and before she died.
Now, no one had seen decedent before or after the bus struck her.
Consequently, there was no direct proof that she exhibited any cognitive awareness,
or that she that she experienced any conscious pain and suffering. An added
complication. Because of religious objections, decedent's family opposed an autopsy.
None had been performed (A-360-A-361).
Plain tiff's forensic expert
Still, Plaintiff insisted she could prove that decedent had endured some period
of conscious pain, calling on the services of Mark Taff, a Nassau County pathologist.
Taff had worked as an M.E. in a number of jurisdictions, most recently as chief
medical examiner in Rockland County (A-316).
Re: Miriam Levy Oates v. New York City Transit Authority, et al.
APL-2016-00090
Page 10
Taff concluded that decedent had been run over by a bus, and that she'd died
as a consequence. Second, and more importantly, Taffbelieved that one could
accurately estimate the duration of the conscious pain decedent suffered from the
moment she became aware that the bus was approaching until the massive trauma
extinguished her awareness.
A bus, Taff concluded, consumed time as it travelled over a distance (A- 347).
Taff thought that a second or so would pass between the time decedent realized the
bus would run over her, and when its front wheels actually crushed her.
Death itself, he continued, wouldn't be instantaneous.
Taff used two analogies to explain:
This is not an explosion where a person is vaporized. It's a
pedestrian motor vehicle accident. There is a certain amount
of time that's involved with these cases before a person
succumbs to all the injuries (A-349).
Nor was it like a guillotine," ... where someone's head is chopped off. .. " with
death following instantaneously (A-401). In our case, a second, perhaps two, maybe
three would elapse before decedent would fade from consciousness.
Taff went on to offer a range: decedent would have endured anywhere from 2-
5 seconds of a combination of pre-impact terror and trauma-related pain, the
consequence of the bus barreling toward her, running over and crushing her.
I gave her anywhere between two to five seconds of
conscious pain and suffering before she lost consciousness
(A-346).
The Medical Examiner's conclusion on pain and stdfering
Taff had insisted that, in reaching his conclusions, he'd relied in part on the
report authored by the Bronx County medical examiner, Dr. Jane Smiddy (A-679, A-
1019). But Dr. Smiddey disagreed with Taff. She did not believe one could tell how
long decedent remained conscious after she was struck.
Ms. Levy was found dead at the scene, the accident unwitnessed. Since no one
actually saw how she died, it was impossible say how long decedent was conscious, or
whether she endured any pain:
Because the decedent was found dead and conscious
pain and suffering is a determination that's generally made
by clinicians, nurses or doctors, EMS who treat individuals
who are victims of injuries and there is some survival, either
in an ambulance or in an emergency room. (A-696)
Re: Miriam Levv Oates v. New York City Transit Authoritv. et al.
APL-2016-00090
Page 11
Smiddy was blunt. She knew of no way of proving how long a person retained
consciousness and continued to experience pain when there were no witnesses to
describe decedent's death (See A-696).
I know of no studies and I know of no controlled
studies that would actually determine conscious pain and
suffering in severe injuries (A-696).
Challengjngplaintiifs primafacie case
The Authority moved to dismiss both plaintiffs wrongful death and the
survival claims. Each was speculative, and the expert testimony to back them lacked
any foundation (A-647-648, A-879). The trial court denied the motion, and submitted
the case to the jury. The jury found that the Authority's driver was negligent and that
his negligence was a substantial factor in causing the accident. It awarded plaintiff
damages, including $300,000 for decedent's conscious pain and suffering (A-999-A-
1002).
The Appeal to the Appellate Division
The Authority challenged plaintiffs prima-facie case, arguing that plaintiff
couldn't prove that the bus operator was negligent. The reconstruction plaintiff
offered rested on speculation. Equally speculative, was plaintiffs effort to establish
that decedent suffered conscious pain, whether before the accident, in the form of
pre-impact terror, or in the moments during and after, as the bus ran over her.
The Appellate Division decision
The Appellate Division majority rejected the Authority's arguments. It thought
that the angle at which plaintiffs body lay in the roadway showed, " ... that the bus
driver, pulling out of the ... stop, should have, with the proper use of his senses seen
decedent (see Klein v. Long Is. RR Co., 199 Misc. 532, 535 [Sup. Ct. Kings Co. 1950],
affd278 App. Div. 980 [2nd Dept. 1951], afl'd 303 NY 807 [1952])." Lery-Oates, at 138
A.D.3d 470.
It also believed that plaintiff had proved that Rachel was conscious for two to
five seconds after the bus struck her based on the " ... uncontroverted expert
testimony ... "
The dissent
Two dissenters took issue with the majority, characterizing plaintiffs liability
case as speculative:
How decedent came to be run over is established by
neither testimony nor physical evidence, and the conclusions
advanced by plaintiffs' expert witness attributing negligence
Re: Miriam Levy Oates v. New York City Transit Authority, et al.
APL-2016-00090
to defendant's driver have no foundation m the facts
adduced at trial.
At 138 A.D.3d 471.
Page 12
The dissent began by pointing out what one didn't know about the accident.
The accident was unwitnessed, and the driver's claim that he was unaware that
anything had gone wrong received confinnation from the words of another passenger
on the bus who recalled nothing. Nor did any of twenty or more passengers on board
notice anything unusual; none had cried out as the bus pulled away from the stop.
Phillips's expert testimony, on which plaintiff's prima-facie case rested, was
riddled with holes. Phillips assumed that decedent was in the stop when the accident
happened, but if that were so, why hadn't she boarded the bus? And what Phillips
couldn't account for was the nearly 30-minutes between the time decedent ended her
shift, and the time the bus allegedly struck her.
Phillips couldn't explain the landmarks either. Under Phillips' theory, decedent
who had been trapped between the pole and the bus, should have been propelled
ahead of the pole. But instead, decedent lay north, or in back of the pole. This fact
alone, the dissenters thought," ... completely repudiates Phillips's theory as to how
this incident occurred ... " id. at 476.
The dissent thought there was a more plausible scenario that accounted for the
accident- decedent approaching from the bus's rear, her hands at her sides weighed
down by the bags she was carrying. Perhaps decedent had gone shopping after her
shift ended at 2 pm, and was rushing back to catch the bus. Decedent may have fallen,
face forward, attempting to brace her fall with her hands. The bus driver's vision,
obscured by the blind spot, prevented the driver from spotting decedent just as she
wound up under the right front wheel. Id at 476-477.
Given both the flaws in plaintiff's theory and the existence of a more plausible
alternative, plaintiff failed to prove that the Authority's negligence caused the
accident. The suit had to be dismissed. On the strength of the two dissents, the
Authority appealed to this Court.
Re: Miriam Levy Oates v. New York City Transit Authority, et al.
APL-2016-00090
• PLAINTIFF FAILED TO PROVE THAT THE AUTHORI1Y'S
DRIVER WAS GUILTY OF NEGLIGENCE IN STRIKING
DECEDENT, EVEN UNDER THE LESSER BURDEN OF
NOSEWORTHY V. CITY OF NEW YORK THE FORENSIC
EVIDENCE DOES NOT SUPPORT PLAINTIFF'S LIABILI1Y
THEORY, AND IS CONSISTENT WITH A SCENARIO THAT
RELIEVES THE AUTHORITY OF LIABILITY.
Proving that the bus had come in contact with decedent proves on!J haifa case.
Page 13
Below, plaintiff made much of the fact-stark, obvious, and uncontested-
that Brady's bus came in contact with decedent. But as the cases inform us, a plaintiff
who proves that defendant's vehicle came in contact with him proves only half a case.
And that same principle applies even when plaintiff prosecutes an action for wrongful
death.
Wank v. Ambrosino 307 NY 321 (1954) makes the point forcefully. There,
defendant driver struck decedent, but denied that he'd ever seen anything. The
evidence revealed that the driver had stopped his car at a red light, preparing to make
a right turn. The light turned green, the driver turned, proceeding slowly into the
street.
Fifty feet into the intersection, the driver heard a bump, left the car, checked
his tires, but found nothing. He started the car again. He heard a noise again. He got
out again. This time, after stopping and leaving his car, he found a body underneath,
its head pointing toward the front of the car, the feet to the rear.
Defendant driver insisted that he hadn't seen decedent before contact, even
though the street was well lit. No one saw the car strike the pedestrian, although drag
marks of 170-feet marred the roadway's surface.
At the close of plaintiff's case, the trial court dismissed the suit, a decision the
Appellate Division and the Court of Appeals affirmed. Perhaps a jury could conclude
that the driver's car struck decedent. But proving contact got plaintiff only so far.
Plaintiff also had to show that defendant was guilty of negligence, and this plaintiff
could not do:
An inference could be justified that defendants' car hit
the man, but, since there is nothing at all to show how that
came about, there is nothing on which to base a finding of
negligent causation.
307 NY at 323.
Mehra v. Ben~ 529 F.2d 1137 (2nd Cir. 1975), interpreting New York law,
fortifies the point. Plaintiff in Mehra sued the driver of a car that struck decedent. The
Re: Miriam Levy Oates v. New York City Transit Authority, et al.
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car driver had been driving along a deserted country road during the night, when he
heard a thud, which shattered his windshield. The driver stopped, flagged down two
men, who after investigating, found a body lying in the roadway.
The District Court dismissed the suit, relying on Wank, supra, and the Second
Circuit affirmed. Plaintiff may have succeeded in proving that defendant's car struck
decedent. But that was not enough. Plaintiff was also required to prove that the driver
could have spotted decedent on the road, and that his failure to do so, and to stop in
time, amounted to negligence.
These cases compel an obvious conclusion. Because plaintiff failed to prove
that the bus operator could have spotted decedent, or even if he could, that he could
have acted in time to avoid the accident, the suit should be dismissed.
The shortcomings in plaintiffs proof
Consider the following:
• We know nothing directly about the facts of the accident- so we have
no idea where precisely decedent was when she fell under the bus; her distance
from it, the angle she approached it-anything that would allow us to reach a
fact-based conclusion that the accident could have been avoided.
• If we view matters from the bus operator's perspective, plaintiff's case
does not improve either. Brady denied seeing anyone in the roadway as he
pulled out of the stop. The sole passenger one could identify, added nothing of
import either. He hadn't heard a thump, and thought there was nothing
unusual as the bus continued on Henry Hudson Parkway.
• If anything, plaintiff's suit here fares worse that the suit brought in
Wank. In Wank, the offending driver stopped his vehicle immediately, allowing
one to retrace the vehicle's path. But here, the bus's connection to the accident
was discovered only later, hours later, making it difficult to reconstruct both
the bus's movements at the accident site, and the driver's alleged failure to
exerctse care.
• Plaintiff here also comes off second best to the plaintiff in Mehra who
was again able to link the sound of a thump and a broken windshield to the
vehicle's driver, but was unable to prove that the driver acted negligently. Here,
no thump or other objective evidence could have alerted Brady that his bus had
struck anyone.
Nosewortf?y offers ~biaintiffno aid
Plaintiff can be expected to counter that because she is pursuing a wrongful death
claim, she labors under a lesser burden of proof, as the Court established in Nosewortf!J
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v. City of New York, supra. Consequently, her suit was strong enough to go to the jury
even where another suit, brought on behalf of a plaintiff who survived, might not.
Wank, supra refutes that argument. The plaintiff there raised the same argument.
Under Nosewortf?y, she was entitled to prevail, given that she labored under a lesser
burden. The Court of Appeals disagreed. Before plaintiff could invoke Nosewortf?y, she
was bound to provide some independent evidence of negligence:
True it is that "in a death case a plaintiff is not held to as
high a degree of proof of the cause of action as where an
injured plaintiff can himself describe the occurrence"
(Nosewortf?y v. City of New York, 298 N.Y. 76, 80) but before
that rule comes into play there must be some showing of
negligence, however slight.
307 NY 323, 324.
Plaintiff in Wank didn't make that showing, and plaintiff didn't make it here
either.
App!Jing the Wank-Nosewortf?y standard to other suits where an instrumentality owned l:ry
defendant strikes decedent.
"
Wank does not stand alone. Two Authority suits, both brought on behalf of
decedents who died under subwqy trains, vindicate its principle.
Christian v. New York City TransitAuth., 74 A.D.2d 751 (1st Dept. 1980), aff'd 52
NY2d 920 (1981) stands as an underground counterpart to Wank. In Christian,
decedent wound up pinned between the train and platform. The conductor,
responsible for checking the platform, knew nothing about the accident. Nor did the
"throng" of students who'd entered the train from a nearby high school. Yet a jury,
spurred by the Nosewortf?y charge, returned a verdict for plaintiff. The Appellate
Division, though mindful of the N osewortf?y boost, dismissed the suit:
We apply to no avail the favorable rules applicable to
death cases (see, e.g., Cruz v Long Is. R R Co., 28 AD2d 282;
Nosewortf?y v City of New York, 298 NY 7 6; Gonzalez v Concourse
Plaza Syndicates, 31 AD2d 401) ... in each of these cases,
however, the plaintiff established some causal connection
between negligence and injury, whether by direct or
circumstantial evidence. Here there was not a shred of
evidence, direct or circumstantial, either of negligence or
some breach of duty on the part of defendant or any
employee. A prima facie case was not established and the
case should not have gone to the jury.
Re: Miriam Levy Oates v. New York City Transit Authority, et al.
APL-2016-00090
This Court agreed with the Appellate Division. It affirmed the dismissal:
As a matter of law there was insufficient evidence of
any negligence on the part of the Transit Authority to permit
the case to go to the jury.
52 NY2d at 921.
Page 16
Hryward v. New York City Transit Authority, 76 A.D.2d 880 (2nd Dept. 1980), aff'd
52 NY2d 846 (1981), presents a variation on the same theme: decedent found
underneath the 4th car of a train, with no clear explanation of how he wound up there;
the operator of the train, disclaiming any knowledge, no witnesses to elucidate what
happened, yet the jury returning a verdict in plaintiff's favor.
The Second Department dismissed the suit, " ... there was not a shred of
evidence, either direct or circumstantial, that the defendant or any of its employees
were negligent or breached some duty." This Court agreed, affirming on the Appellate
Division memorandum. See also, Castellano v. New York City TransitAuth., 38 A.D.3d
822 (2nd Dept. 2007 {Dismissing case brought by person struck by train, after noting
that, "The mere fact that the plaintiff was struck by a train, which is all that was
shown, afforded no proof of the defendant's negligence."} .3
Another expected counterattack-plaintiif's expert and the opinions he offered on the
accident's cause and the bus driver's negligence.
Plaintiff will doubtless argue, as she did below, that if the jury believed her
expert's theory of the accident, they were free to conclude that the Authority was
negligent. But Phillips's opinion was no stronger than the facts and assumptions on
which it rested. As the cases inform us, an expert who offers only his bare conclusions
about the cause of an accident, cannot create a genuine issue of fact.
So, just as in Doomes v. Best Tr. Cotp., 17 N.Y.3d 594 (2011), where the Court
dismissed a suit, in part, because it found that plaintiff's expert offered opinions that
" ... were conclusory and based on speculative data that failed to establish a causal
relationship to the accident (see Cotter v Pal & Lee, Inc., 86 AD 3d 463, 466-467, 928
NYS2d 262 [1st Dept. 2011])" ... , just as in Cassano v. Hagstrom, 5 NY2d 643, 646
(1959) where it derided as "worthless" an expert who based his conclusion on
speculation, so, too, here. Phillips' views rest on a base of speculation and conjecture;
they cannot show how the accident happened, let alone how bus operator Brady is
3 What of Klein v. Long Is. R.R Co., 199 Misc. 532, 535 [Sup. Ct. Kings Co. 1950], affd 278 App. Div. 980 [2nd
Dept. 1951], affd 303 NY 807 [1952], which the majority cited to support liability? The Authority's reply below
points to the distinctions between our facts here, where the forensic evidence did not demonstrate that the front of
the bus struck decedent, and where the Authority explained why the operator's vision might have been obscured by
various blind spots. Nor is it fair to compare the operator of a train to a bus operator, attempting to merge into
traffic, who must shift his focus in order to maneuver successfully into an active lane of traffic to his left. Finally,
Klein sits uneasily with such subsequent cases as Christian and Heyward.
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supposed to have been negligent. (See also Diaz v New York Downtown Hosp., 99 NY2d
542, 544-545 [2002] {''Where the expert's ultimate assertions are speculative or
unsupported by any evidentiary foundation, however, the opinion should be given no
probative force ... ")
The failing in the theories plaintiff's expert offered
Consider what Phillips had to assume in order to blame Brady for the accident.
First, he had to suppose that decedent was already in the bus stop facing the bus,
when it started to pull out. The evidence for that assumption was weak and
unpersuasive. For all the evidence reveals, decedent arrived at the stop, after the bus
pulled away, and fell as she chased after it.
As the dissenters recognized, plaintiffs assumption fails to contend with the
following physical realities:
• Decedent was found behind the bus-stop pole, not in front of it, as
Phillips' theory demanded;
• Had plaintiff been whipsawed into the roadway, the contents of her two
bags, laden with groceries, would have been strewn on the sidewalk and
street; that they were not, suggested that decedent pitched forward, as
she fell flat on her face, under the bus's front wheel.
• Had the front bumper of the bus lifted decedent of her feet, one would
have seen some trauma on decedent's lower extremities; but other than a
scratch on the back of plaintiffs knee, there were none.
All this, the dissenters pointed out below. But there is a more fundamental flaw
that undercuts Phillips testimony, and highlights why the cornerstone of his liability
theory fails both as a matter of fact and as a matter of law.
Propensity evidence--Phillips's explanation ofwi?J he believed Bracfy's btts mottnted the cttrb,
catapttlting decedent into the roadwqy.
Phillips's theories assume one crucial fact: that Brady's bus trapped decedent in
the 15-inch space separating the curb and the bus-stop pole, stripping her of the
freedom to move about. Phillips had no direct evidence of what Brady did. Rather, he
concluded that Brady had approached dangerously close to the curb, after watching 3
buses pull into the stop, six years after the accident. Phillips assumed that what he saw
represented a deeply ingrained Authority practice, so he could conclude with
confidence that Brady followed the same practice six years earlier. Phillips's views
remain unpersuasive on a number of counts.
It is true, that in limited circumstances, the law will allow the admission of
evidence that a party habitually engaged in certain routinized conduct. That evidence
may allow a jury to conclude that a person acted in conformity with a well-settled
habit (See Halloran v. Virginia Chemicals, Inc., 41 N.Y.2d 386 [1977]). But even under
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Halloran, one cannot point to the habitual actions of person "A" to argue that person
"B" engaged in the same conduct.
On no view, under traditional analysis, can conduct
involving not only oneself but particularly other persons or
independently controlled instrumentalities produce a regular
usage because of the likely variation of the circumstances in
which such conduct will be indulged.
41 NY2d at 392.
It follows that-as a matter of law- Phillip's couldn't draw the inference he
did-that because some drivers got close to the curb in 2012, Brady got too close to it
in 2006.
Common sense also frowns on the inference. First, conditions on the day
Phillips showed up varied from those on the day of the accident. The model buses
weren't the same; and the physical architecture of the stop had changed as well. A new
pole had been placed forward of where its predecessor had been positioned in 2006.
Second, Phillips's 2012 sample-two or three drivers-was too small to allow
one to say with any confidence that they reflected standard Authority behavior in
2012, let alone 2006.
But Phillips's conclusion is flawed on a more fundamental level. Phillips own
proof doesn't show that any of the drivers, not the ones he photographed in 2012, not
Brady in 2006, did anything wrong.
Let's examine Phillips's photographs. All they show are some buses pulling up
an inch or two away from the curb. It is hard to see why plaintiff blasts this conduct
as negligent. First, a bus parked close to the curb makes it easier for passengers to
board and disembark. One can imagine that if the bus had stopped a distance away, a
passenger could fault the Authority for failing to provide its passengers a safe place to
board and alight (See Toolsie v. New York City Transit Auth., 55 A.D.3d 476 [1st Dept.
2008]).
Further, the photos do not depict what plaintiff described as a virtual prison,
trapping decedent between the approaching bus and the pole. This is so for two
reasons (A-1073). First, if one shifts the landmarks by a few inches, the scenario
collapses. So, if the bus stops 3 inches, 4 inches, south of the pole, if decedent moves
2 inches or 3-inches to the north, Phillips's elaborately constructed hypothetical,
sandwiching decedent in a 15-inch prison between the bus and the light pole
crumbles.
But even more. Hew to the measurements Phillips provided. Follow them to
the millimeter. Even so, they do not present a scenario that has decedent imprisoned,
her freedom of movement impeded, trapped and confined between the pole and the
bus. For example, plaintiff's exhibit 7, a photograph of the accident site, depicts the
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bus stop sign occupying a space a respectable distance from the curb (A-1064; A-
1073)~ If the bus stop pole qualified as a prison, it was a prison without walls .. All
decedent had to do to escape, was shift slightly to the left or right, or move back.
The photographs highlight one final difficulty with plaintiffs case-they do not
show any part of the bus encroaching the sidewalk. The chassis of the bus gets close.
But no more than that. See A-1073-1074. Given that reality, it becomes even harder
to understand how Phillip's theory can be reconciled with the facts.
Ajinal summary
Let's review what Phillips' theory would have us believe. Decedent is standing,
her back against the wall, or rather the pole, 15-inches from the curb. A bus, stopped
a few inches from the curb begins to pull out to the left. Somehow, the extreme right
corner of the bus snatches decedent, flings her into the roadway, 4-5 feet out, without
leaving a trace of forensic evidence that the bus's exterior made contact with that
person. And how does that the bus accomplish that feat, without disturbing the
contents of the bags decedent was carrying? Above all, how does plaintiff escape the
deadly consensus, fatal to her prima-facie case, reached by the Authority's expert and
her own, that decedent lay not south, or in front of the pole, but anywhere from 4-10
feet in back of it?
The dissenters' scenario
The dissenters at the Appellate Division not only thought that plaintiff couldn't
offer a scrap of evidence to support their liability theories, they offered their own
more plausible scenario of how the accident happened. They concluded that after
she'd finished her shift at 2 pm., decedent had gone shopping, utilizing the overpass
in back of the stop, at 236th Street. When decedent f11lished, a bus was pulling in to
the stop. Decedent rushed to get it. She lost her balance, fell under the right front
wheels, while the operator, merging left, his vision obscured by a blind spot, couldn't
see her.
The Court needn't buy into the dissenters' scenario. It can remain agnostic
about whether decedent had spent the half hour after f11lishing work loading up on
groceries. It need only be satisfied that plaintiff failed to carry her burden, that the
evidence is equally consistent with, " ... several possible causes of injury, for one or
more of which defendant is not responsible ... " (See Digelormo v Weil, 260 NY 192, 200
(1932).
Or it may frankly avow its ignorance. It may remain in doubt about what
happened, a state of affairs that saps the viability of plaintiffs prima-facie case just as
effectively as the scenario the dissenters adopted. But whichever road it takes, it
should agree with the dissenters that plaintiff could not prove that the Authority was
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Page 20
negligent. Following the path it took in Wank, Christian, and Hryward, it should dismiss
the suit.
• PLAINTIFF FAILED TO PROVE THAT DECEDENT ENDURED
ANY CONSCIOUS PAIN AND SUFFERING. THE CLAIM SHOULD
BE DISMISSED.
Under EPTL 11.3.3 (a), plaintiff was entitled to recover for the conscious pain
decedent suffered as a result of the Authority's negligence. But to prevail, plaintiff
bore the burden of proving-by a preponderance of the evidence-both that
decedent was conscious, and the length of time such consciousness lasted. On both
counts plaintiff failed.
P laintiffand the burden ofproving that decedent was conscious.
As the cases hold, for a plaintiff to recover, she must prove that decedent was
cognitively aware between the time the bus struck and the time she died: " ... cognitive
awareness is a prerequisite to recovery" on behalf of a decedent. McDougald v. Garber,
73 N.Y.2d 246,255, [1989]).
Fiederlein v. New York City Health & HospitalsCorp., 56 N.Y.2d 573 (1982)
illustrates how emphatically the law demands that plaintiff provide concrete proof of
conscious pain. There, plaintiff's son, a psychiatric patient was allowed to leave the
hospital on a pass. He was later found floating in the Hudson, dead, an apparent
suicide. Plaintiff sued for his son's pain and suffering, but the Court of Appeals
dismissed the claim. "Mere conjecture, surmise or speculation ... " was all plaintiff
offered to support the claim that decedent endured conscious pain and suffering.
Lacking credible proof, the claim couldn't stand. It had to be dismissed.
Cummins v. County of Onondaga, 84 NY2d 322 (1994) applies these principles in
the context of a death and survival action resembling our own. Decedent was driving
an automobile that veered off a road, before coming to rest in a body of water next to
the roadway. Plaintiff sued to recover for wrongful death and decedent's pain and
suffering, blaming the County for failing to maintain the roadway.
The proof at trial showed that that decedent's car had been traveling at 45-mph
when it spun out of control, landing in the water. Rescue personnel recovered the
body, but decedent had no vital signs. Although they tried to revive her, decedent
couldn't be roused.
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Plaintiff's expert offered inconclusive testimony, but the jury still credited
plaintiff's assertions that decedent had survived for a period. They awarded plaintiff
$400,000 in compensation for decedent's conscious pain.
The Court of Appeals reversed and dismissed. Plaintiff's case rested on a base
of speculation and surmise. Plaintiff hadn't presented, " .. .legally sufficient proof of
consciousness ... " Consequently, plaintiff hadn't carried her burden of proof.
A Federal Court, drawing on New York Law, makes the same point, albeit
indirectly. The issue in Matter of Adler, 869 F. Supp. 1021 (E.D.N.Y. 1994) was
whether a settlement reached in a lawsuit should be allocated to the wrongful death
action, or the pain and suffering claim. A cause of action for pain and suffering is part
of the decedent's estate. If the government could show that part of the settlement
covered the pain and suffering claim, it could demand that plaintiff pay Estate taxes
on the recovery.
Decedent in Adler died when he was struck by an automobile. He was carried
70-feet on the car's hood, before he was tossed into a ditch. Witnesses at the scene
testified that he was unresponsive, and he was declared dead, about a half-hour later.
After the suit was settled, the government insisted that part of the settlement
covered the claim for pain and suffering, so that it was entitled to estate taxes. But the
District Court disagreed. The evidence failed to establish that decedent suffered any
conscious pain. The Court noted that under New York Law:
"cognitive awareness is a prerequisite to recovery"
for pain and suffering on behalf of a decedent. McDougald v.
Garber, 73 N.Y.2d 246, 255, 538 NY.S.2d 937, 940, 536
NE.2d 372 (1989).
The government failed to prove that decedent was aware of anything, once he
was struck. Given that failure, the settlement could not have covered any claim for
pain and suffering.
The Appellate Divisions on proving conscious pain and sufferin~
Other cases reach similar conclusions. Plaintiff couldn't prove that decedent, in
Kevra v. Vladagin, 96 A.D.3d 805 (2nd Dept. 2012) suffered any conscious pain.
Decedent was riding in a car, which flipped onto its side and crashed into a tree. The
crash occurred at 8 p.m., and the medical examiner declared decedent dead nearly an
hour and a half later.
The Appellate Division dismissed the claim. Defendants carried their burden
by proving that during the nearly 90 minutes between the crash and the official time
of death, decedent made no sound or movement, and did not appear to be breathing.
See also Phiri v. Joseph, 32 A.D.3d 922 (2nd Dept. 2006) {Dismissing pain and
suffering claim where no one saw decedent move or make any sounds after he was
Re: Miriam Levy Oates v. New York City Transit Authority, et al.
APL-2016-00090
struck by bus, and where the Court concludes that any claim that decedent
experienced pre-impact terror was speculative.}
Page 22
Public Adm'r of Kings County v. U.S. Fleet Leasing, Inc., 159 A.D.2d 331 (1st Dept.
1990) {No evidence that plaintiff was conscious or aware after automobile struck him;
pain and suffering claim dismissed}.
Zurita v. McGinnis, 7 A.D.3d 618 (2nd Dept. 2004) {Pedestrian struck by
defendant's vehicle. Pain and suffering award dismissed because, plaintiff offered no
proof, that decedent, " ... cried out, spoke, or made intentional movements following
the impact of McGinnis's vehicle ... " .
Here, the failings of plaintiff's case on pain and suffering stand out even more
prominently. No one saw anything. No one can say what decedent knew, whether she
sensed that the bus was approaching, whether she feared imminent catastrophe, or
whether she was simply oblivious to her surroundings. Our ignorance extends to
decedent's condition after the bus struck her. Once again, no one can offer a hint of
how decedent reacted, whether she gasped for air, whether she cried out in pain, or
whether she lapsed into unconsciousness immediately.
An expected reJoinder--Dr. T af£ as establishing the case for conscious pain and suffering.
Plaintiff will doubtless counter that unlike the plaintiffs in the earlier cited
cases, here, she offered the words of an expert, Dr. Taff, to make out a case. Couldn't
the jury credit Taff and conclude that Rachel Levy endured 2-5 seconds of pain before
she lost consciousness? They couldn't for the following reasons.
For Taff's testimony to count as competent, the opinions Taff offered had to
draw on the evidence in the record, or established scientific or medical principles. See,
generally, Caton v. Doug Urban Construction Co., 65 NY2d 909 (1985); Romano v. Stanlry,
90 NY2d 444 (1997). Taff's conclusions drew on nothing other than his resume. He
simply assumed that any victim of a motor vehicle accident would perforce endure
pain and suffering, and assumed further that unless one was vaporized in an explosion
or lost one's head to a guillotine, one would always be subject to conscious pain and
suffering.
Further, not only did Taff's testimony draw on nothing but his own,
unsupported conclusions, it contradicted the views of the medical examiner, Dr.
Smiddy, who testified that one could not arrive at any scientifically based view about
what if any conscious pain decedent suffered, let alone how long it endured.
The bottom line? Taff's conclusions clash with the evidence.and common
sense. They clash with case law, too. They cannot be reconciled with Cummins, supra,
which implicitly rejects Taff's premise that all pedestrians struck by motor vehicles,
inevitably suffer some degree of conscious pain.
Re: Miriam Leyy Oates v. New York City Transit Authority, et at.
AP L-20 16-00090
Page 23
In short, if the Court decides that plaintiff made out wrongful-death claim it
should nevertheless conclude that plaintiff failed to prove her claim for conscious
pain and suffering.
Lawrence Heisler
COURT OF APPEALS OF THE STATE OF NEW YORK
----------------------------------------------------------------------X
MIRIAM LEVY OATES,
Plaintiff-Appellant,
-Against-
NEW YORK STATE THRUWAY AUTHORITY,
Defendant-Respondent,
---------------------------------------------------------------------X
CORPORATE DISCLOSURE STATEMENT
Pursuant to Rule 500.1(f) of the New York State Court of Appeals,
Defendant-Appellant THE CITY OF NEW YORK makes the following
disclosures:
NONE
AFFIDAVIT OF SERVICE
STATEOFNEWYORK
COUNTY OF WESTCHESTER
)
)
)
Ivan Diaz, being duly sworn, deposes and says that deponent is not a party to the action, is
over 18 years of age, and resides at 2160 Holland A venue, Bronx, New York 10462.
That on the 241h day of June, 2016, deponent personally served the within
LETTER BRIEF
upon designated counsel for the parties indicated herein at the addresses provided below by
leaving 3 true copies ofthe same. Names, addresses, and phone numbers of attorneys
served, together with the names of represented parties:
LAW OFFICES OF ROSEMARIE ARNOLD
Attorneys for Plaintiffs-Respondents .
825 Third Avenue, 41h Floor
New York, New York 10022
(212) 461-1111
pbutler@rosemariearnold.com
Sworn to before me this
241h day of June, 2016
Notary Public
ERIC ROBERT LARKE
Notary Public, State of New York
No.01LA5067236
Qualified In Westchester County
Commission Expires March 5, 2019
PJvanDiaz
Original 10071