Oates v. New York City Transit Authority

Appellate Division of the Supreme Court of New York

Oates v. New York City Transit Authority

138 A.D.3d 470, 30 N.Y.S.3d 606

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 12, 2016

Docket15090 302214/07

StatusPublished

Cited by3 cases

This text of 138 A.D.3d 470 (Oates v. New York City Transit Authority) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Oates v. New York City Transit Authority, 138 A.D.3d 470, 30 N.Y.S.3d 606 (N.Y. Ct. App. 2016).

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Judgment, Supreme Court, Bronx County (Norma Ruiz, J.), entered September 9, 2013, upon a jury verdict, awarding plaintiffs $300,000 for decedent Rachel Levy’s conscious pain and suffering; $150,000 for plaintiff Hadassah Levy’s past loss of custodial services, and $400,000 for her future loss of custodial services (over a 10-year period); and $100,000 for plaintiff Miriam Levy Oates’s future loss of nurture, care and guidance (over a five-year period), affirmed, without costs.

Decedent, mother of Miriam and daughter of Hadassah, was found dead under one of defendant Transit Authority’s buses. While the bus driver had no explanation for how her body came to be there, plaintiffs’ evidence, including DNA evidence matching samples recovered from the bus, was sufficient to support the jury’s finding that the bus driver was negligent in operating the bus. The evidence showed facts and conditions from which negligence and causation could “be reasonably inferred” (Wragge v Lizza Asphalt Constr. Co., 17 NY2d 313, 320 [1966]). In particular, plaintiffs showed that decedent’s body had been crushed by the bus at such an angle that the bus driver, pulling out of the bus stop, should have, with the proper use of his senses, seen decedent (see Klein v Long Is. R.R. Co., 199 Misc 532, 535 [Sup Ct, Kings County 1950], affd 278 App Div 980 [2d Dept 1951], affd 303 NY 807 [1952]).

Plaintiffs’ uncontroverted expert testimony that decedent was conscious and in pain for two to five seconds after being hit by the bus supports the jury’s finding that decedent sustained conscious pain and suffering prior to her death (see Triana v Smith’s Transfer Corp., 198 AD2d 476, 477 [2d Dept 1993]; see also Stein v Lebowitz-Pine View Hotel, 111 AD2d 572, 573 [3d Dept 1985], lv denied 65 NY2d 611 [1985]).

There was sufficient evidence of decedent’s nuture, care and guidance to her daughter to justify the award to the latter (see McHugh v New York City Tr. Auth., 95 AD3d 686 [1st Dept [471]*4712012]). Further, the Transit Authority waived its argument that decedent’s mother could not recover damages for decedent’s wrongful death, since it failed to raise the argument at any time before this appeal (see CPLR 3211 [a] [3]; [e]; see also San Filippo v New York City Tr. Auth., 105 AD3d 665, 667 [1st Dept 2013]).

The amounts awarded are not excessive (see CPLR 5501 [c]; Santana v De Jesus, 110 AD3d 561, 562 [1st Dept 2013], lv denied 22 NY3d 864 [2014]; Filipinas v Action Auto Leasing, 48 AD3d 333 [1st Dept 2008]; McHugh, 95 AD3d at 686; Van Norden v Kliternick, 178 AD2d 167 [1st Dept 1991]).

Plaintiffs’ counsel’s remarks during trial did not deprive the Transit Authority of a fair trial, especially since the court gave curative instructions after many of the challenged comments (see Boyd v Manhattan & Bronx Surface Tr. Operating Auth., 79 AD3d 412, 413-414 [1st Dept 2010]).

Concur — Sweeny, Moskowitz and Gische, JJ.

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Judgment, Supreme Court, Bronx County (Norma Ruiz, J.), entered September 9, 2013, upon a jury verdict, awarding plaintiffs $300,000 for decedent Rachel Levy’s conscious pain and suffering; $150,000 for plaintiff Hadassah Levy’s past loss of custodial services, and $400,000 for her future loss of custodial services (over a 10-year period); and $100,000 for plaintiff Miriam Levy Oates’s future loss of nurture, care and guidance (over a five-year period), affirmed, without costs.

Decedent, mother of Miriam and daughter of Hadassah, was found dead under one of defendant Transit Authority’s buses. While the bus driver had no explanation for how her body came to be there, plaintiffs’ evidence, including DNA evidence matching samples recovered from the bus, was sufficient to support the jury’s finding that the bus driver was negligent in operating the bus. The evidence showed facts and conditions from which negligence and causation could “be reasonably inferred” (Wragge v Lizza Asphalt Constr. Co., 17 NY2d 313, 320 [1966]). In particular, plaintiffs showed that decedent’s body had been crushed by the bus at such an angle that the bus driver, pulling out of the bus stop, should have, with the proper use of his senses, seen decedent (see Klein v Long Is. R.R. Co., 199 Misc 532, 535 [Sup Ct, Kings County 1950], affd 278 App Div 980 [2d Dept 1951], affd 303 NY 807 [1952]).

Plaintiffs’ uncontroverted expert testimony that decedent was conscious and in pain for two to five seconds after being hit by the bus supports the jury’s finding that decedent sustained conscious pain and suffering prior to her death (see Triana v Smith’s Transfer Corp., 198 AD2d 476, 477 [2d Dept 1993]; see also Stein v Lebowitz-Pine View Hotel, 111 AD2d 572, 573 [3d Dept 1985], lv denied 65 NY2d 611 [1985]).

There was sufficient evidence of decedent’s nuture, care and guidance to her daughter to justify the award to the latter (see McHugh v New York City Tr. Auth., 95 AD3d 686 [1st Dept [471]*4712012]). Further, the Transit Authority waived its argument that decedent’s mother could not recover damages for decedent’s wrongful death, since it failed to raise the argument at any time before this appeal (see CPLR 3211 [a] [3]; [e]; see also San Filippo v New York City Tr. Auth., 105 AD3d 665, 667 [1st Dept 2013]).

The amounts awarded are not excessive (see CPLR 5501 [c]; Santana v De Jesus, 110 AD3d 561, 562 [1st Dept 2013], lv denied 22 NY3d 864 [2014]; Filipinas v Action Auto Leasing, 48 AD3d 333 [1st Dept 2008]; McHugh, 95 AD3d at 686; Van Norden v Kliternick, 178 AD2d 167 [1st Dept 1991]).

Plaintiffs’ counsel’s remarks during trial did not deprive the Transit Authority of a fair trial, especially since the court gave curative instructions after many of the challenged comments (see Boyd v Manhattan & Bronx Surface Tr. Operating Auth., 79 AD3d 412, 413-414 [1st Dept 2010]).

Concur — Sweeny, Moskowitz and Gische, JJ.

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138 A.D.3d 470, 30 N.Y.S.3d 606, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oates-v-new-york-city-transit-authority-nyappdiv-2016.

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