Cerreta v. New Jersey Transit Corp.

267 A.D.2d 128, 700 N.Y.S.2d 11, 1999 N.Y. App. Div. LEXIS 12975

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 16, 1999
• Status: Published

Opinion

—Order, Supreme Court, New York County (Diane Lebedeff, J.), entered December 9, 1998, which granted defendants’ motion for summary judgment and dismissed the complaint, unanimously reversed, on the law, without costs, defendants’ motion denied and the complaint reinstated.

Plaintiff Paul Cerreta attempted to board a train which had just begun to move out of Pennsylvania Station. As a result of physical contact with a conductor in the train’s open doorway he fell backwards and his foot caught in the space between the platform and the moving train. The IAS Court discounted plaintiffs’ evidence in opposition to defendants’ summary judgment motion and concluded that plaintiff’s attempt to board the train was the sole proximate cause of this accident. Statements made in opposition to a motion for summary judgment must be accepted as true so long as such evidence is in admissible form (Patrolmen’s Benevolent Assn. v City of New York, 27 NY2d 410, 415; Cochrane v Owens-Coming Fiberglas Corp., 219 AD2d 557, 559). Here, there is a sharp dispute as to whether the conductor negligently blocked entry and caused plaintiff to fall or whether plaintiff attempted to force his way onto the train and bounced off of the conductor. This disputed material issue of fact alone warrants denial of summary judgment, particularly where it bears upon foreseeability and causation (see, Taft v New York City Tr. Auth., 193 AD2d 503). Concur — Nardelli, J. P., Tom, Mazzarelli, Wallach and Buckley, JJ.