Apollo v. Metro-North Commuter R.R. Co.

2024 NY Slip Op 33435(U)

• Court: New York Supreme Court, New York County
• Decided: September 30, 2024
• Docket: Index No. 155822/2022
• Status: Unpublished

Opinion

Apollo v Metro-North Commuter R.R. Co. 2024 NY Slip Op 33435(U) September 30, 2024 Supreme Court, New York County Docket Number: Index No. 155822/2022 Judge: Mary V. Rosado Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 155822/2022 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 09/30/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. MARY V. ROSADO PART 33M Justice ---------------------X INDEX NO. 155822/2022 FRANK APOLLO, JR. and MARIA APOLLO, MOTION DATE 06/25/2024 Plaintiff, MOTION SEQ. NO. 001 - V-

METRO-NORTH COMMUTER RAILROAD COMPANY, NEW YORK CITY TRANSIT AUTHORITY, and DECISION + ORDER ON METROPOLITAN TRANSPORTATION AUTHORITY MOTION

Defendant. --------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 001) 16, 17, 18, 19, 20, 21,22, 23,24,25,26,27,28,29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40,41,42,43,44,45,46 were read on this motion to/for SUMMARY JUDGMENT (AFTER JOINDER)

Upon the foregoing documents, Defendants Metro-North Commuter Railroad ("Defendant

Metro-North"), New York City Transit Authority ("Defendant NYCT A)", and Metropolitan

Transport Authority's ("Defendant MTA'') (collectively, "Defendants") motion seeking summary

judgment dismissing Plaintiffs Frank Apollo Jr. ("Plaintiff') and Maria Apollo's ("Plaintiff Maria

Apollo") (collectively, "Plaintiffs") Amended Complaint is granted in part and denied in part. 1

I. Background

This is an action to recover for personal injuries allegedly sustained by Plaintiff after he

slipped and fell on premises operated and maintained by Defendant Metro-North (see generally

NYSCEF Doc. 21 ). Plaintiff testified that he came up to the top of the stairs at the exit of Grand

Central Station, took two steps in "a puddle of muck," lost balance, slipped, and fell (NYSCEF

Doc. 19 at 17:24-18:1-15, 29:8-16). Plaintiff described the puddle as a combination of water and

1 Plaintiffs agree that Defendants New York City Transit Authority and Metropolitan Transport Authority are improper parties in this action (NYSCEF Doc. 38 at 16). This motion is therefore granted in part as to dismissal of these two Defendants. 155822/2022 APOLLO JR, FRANK ET AL vs. METRO-NORTH COMMUTER RAILROAD Page 1 of 4 COMPANY ET AL Motion No. 001

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dirt that people were tracking into the station (NYSCEF Doc. 19 at 37: 10-18). Plaintiff testified

that a stanchion was put near the area by one of the officers after the accident (NYSCEF Doc.

44:23-25). Plaintiff identified a yellow cone in photographs of the area but testified he had not

seen it at the time of the accident and that he did not know who placed it there (see NYSCEF Docs.

42, and 19 at 46:22-47:5).

Defendants move for summary judgment and argue that Plaintiffs have failed to produce

any evidence that the dangerous condition existed and caused his injuries, or that Defendant Metro-

North had notice of the dangerous condition at the time of the accident. Plaintiffs oppose by

arguing that Plaintiff has sufficiently testified to there being a dangerous condition that caused his

injury, and that Defendant Metro North has failed to prove timely inspection of the premises so as

to constitute lack of notice. Conflicting evidence has been submitted by both parties in the form of

deposition testimony, photographical evidence, and video evidence, inter alia, regarding

Plaintiffs accident (see NYSCEF Docs. 18-30, and 39-43).

II. Discussion

Summary judgment is a drastic remedy, to be granted only where the moving party has

tendered sufficient evidence to demonstrate the absence of any material issues of fact." (Vega v

Restani Const. Corp., 18 NY3d 499, 503 [2012]). The moving party's "burden is a heavy one and

on a motion for summary judgment, facts must be viewed in the light most favorable to the non-

moving party." (Jacobsen v New York City Health and Hasps. Corp., 22 NY3d 824, 833 [2014]).

Once this showing is made, the burden shifts to the party opposing the motion to produce

evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact

which require a trial (See e.g., Zuckerman v City of New York, 49 NY2d 557, 562 [1980];

Pemberton v New York City Tr. Auth., 304 AD2d 340, 342 [1st Dept 2003]). Mere conclusions of

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law or fact are insufficient to defeat a motion for summary judgment (see Banco Popular North

Am. v Victory Taxi Mgt., Inc., 1 NY3d 381 [2004]).

Viewing the facts in the light most favorable to the non-moving party, and given Plaintiffs'

submitted evidence, the Court finds that there exist triable issues of fact which preclude granting

Defendants summary judgment. Defendant Metro-North contends that Plaintiffs have failed to

submit any evidence that establishes that a dangerous condition existed at the time of Plaintiffs

accident (NYSCEF Doc. 33 at p. 7). Plaintiff testified to having slipped on a puddle (NYSCEF

Doc. 19 at 17:24-25, 18: 1-15, 29:8-16). To support this argument, Plaintiffs submitted photographs

of the area and video images of the rainy conditions outside the premises (see NYSCEF Docs. 40-

43 ). The Court finds that Plaintiffs testimony, in conjunction with supporting photographical and

video evidence, conflicted with Defendants' evidence therefore raising triable issues of fact as to

whether there was a dangerous condition on the premises (see Scaccia v Brookfield Properties One

WFC Co., LLC, 227 Ad3d 515,516 [1st Dept 2024] [where evidence that conflicted with movants'

assertion that a dangerous condition did not exist created a triable issue of fact precluding the grant

of summary judgment]).

Accordingly, it is hereby,

ORDERED that Defendants Metro-North Commuter Railroad, New York City Transit

Authority, and Metropolitan Transport Authority's motion for summary judgment dismissing

Plaintiffs' Complaint is granted as to Defendants New York City Transit Authority and

Metropolitan Transport Authority; and it is further

ORDERED that Defendants Metro-North Commuter Railroad, New York City Transit

Authority, and Metropolitan Transport Authority's motion for summary judgment dismissing

Plaintiffs' Complaint is denied as to Defendant Metro-North Commuter Railroad; and it is further

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ORDERED that within ten days of entry, counsel for Defendants Metro-North Commuter

Railroad, New York City Transit Authority, and Metropolitan Transport Authority shall serve a

copy of this Decision and Order, with notice of entry, on all parties to this case; and it is further

ORDERED that the Clerk of the Court is directed to enter judgment accordingly.

This constitutes the Decision and Order of the Court.

9/30/2024 DATE N. MARY V. ROSADO, J.S.C.

CHECK ONE: CASE DISPOSED x NON-FINAL DISPOSITION

GRANTED □ DENIED x GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

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