Mercado v. New York City Transit Authority

135 A.D.3d 619, 22 N.Y.S.3d 873

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 26, 2016
• Docket: 21 301301/10
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Barry Salman, J.), entered September 4, 2014, which, upon vacatur and reargument, granted defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Considered in the light most favorable to plaintiff, the evidence demonstrates that plaintiff’s startled throwing up of his hands, extending the left hand into the space above the subway track, in reaction to the standard train horn sounded to alert platform occupants of the train’s arrival, was an extraordinary, unforeseeable superseding act that broke the causal connection between the injury to plaintiff’s wrist and any alleged negligence of defendants for not sounding the horn more frequently in accordance with procedure (see generally Derdiarian v Felix Contr. Corp., 51 NY2d 308 [1980]).

We have considered plaintiff’s remaining contentions and find them unavailing. Concur — Friedman, J.R, Renwick, Saxe and Moskowitz, JJ.