Maniguat v. New York City Transit Authority

189 A.D.2d 735

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 28, 1993
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Lewis Friedman, J.), entered December 16, 1991, which, in an action for wrongful death, denied defendant’s motion for summary judgment, unanimously affirmed, without costs.

Decedent’s body was found underneath the sixth car of a train that went into an emergency stop shortly after leaving the station when the body activated the trip cock of the sixth car. While there were no witnesses to the incident, plaintiff came forward with the affidavit of an accident reconstruction expert who opined that based on the location of the body, distance of the train from the station and injuries sustained, decedent was walking on the track when he was struck by the train, and that the train operator was negligent in failing to observe him. The affidavit raised an issue of fact as to decedent’s whereabouts at the time of the mishap and defendant’s possible negligence. Concur—Carro, J. P., Milonas, Ellerin, Kupferman and Rubin, JJ.