This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
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No. 85 SSM 4
Robert Obey,
             Appellant,
        v.
City of New York,
             Defendant,
New York City Transit Authority,
             Respondent.


          Submitted by Brian J. Isaac, for appellant.
          Submitted by Lawrence Heisler, for respondent.


          Decided April 4, 2017: On review of
          submissions pursuant to section 500.11 of the
          Rules, order reversed, with costs, and case
          remitted to the Appellate Division, First
          Department, for consideration of issues
          raised but not determined on the appeal to
          that court. Legally sufficient evidence
          supported the jury's finding that defendant
          New York City Transit Authority was negligent
          and that its negligence was a proximate cause
          of plaintiff's injury. Chief Judge DiFiore
          and Judges Rivera, Abdus-Salaam, Stein, Fahey
          and Wilson concur. Judge Garcia dissents and
          votes to affirm, in a memorandum.



GARCIA, J.(dissenting):
          Plaintiff -- while "high on Xanax and Klonopin" -- left
a methadone clinic, fell off a subway platform, and was struck by


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a train.   The jury returned a verdict apportioning fault 60% to
plaintiff and 40% to defendant New York City Transit Authority
(NYCTA), and awarding plaintiff a total of approximately $2
million in damages.   Supreme Court set aside the verdict and
dismissed the complaint.   The Appellate Division affirmed.   I
agree with both lower courts, and therefore I dissent.
           Plaintiff entered the subway station around 11:15 a.m.
and was discovered injured on the tracks at 11:58 a.m.    During
those forty-three minutes, at least two trains passed through the
station.   Neither train operator saw plaintiff, although the
operator of the second train reported observing white sneakers on
the train tracks.   Plaintiff had no memory of the incident, but
contended at trial that the second train caused his injuries, and
that the driver of that train had acted negligently.
           First, as to causation, plaintiff failed to satisfy his
burden that the second train -- and not the first train -- caused
his injuries.   Although neither operator believed that his train
had hit plaintiff -- and plaintiff had no recollection of the
incident -- the physical evidence points solely to the first
train as the proximate cause of plaintiff's injuries: what
appeared to be bloodstains were discovered on four cars of the
first train, while no such stains were discovered on the second
train.   In an attempt to refute the physical evidence,
plaintiff's expert claimed that the apparent bloodstains may
actually have been "grape juice," "pop/soda," or rat blood, and


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that the weight and heat of the train may have cauterized
plaintiff's wound.   Not only are these claims incredible on their
face, but they are undermined by plaintiff's own evidence.    For
instance, plaintiff contends that his wound may have instantly
cauterized -- to explain the absence of any blood on the second
train -- while simultaneously pointing to a "large pool of blood"
on the tracks for purposes of determining the accident location.
On this record, the sum of the credible evidence indicates that
plaintiff's injuries were caused by the first train, and
accordingly, there is "no valid line of reasoning and permissible
inferences"   to sustain plaintiff's verdict (Cohen v Hallmark
Cards, 45 NY2d 493, 499 [1978]).
          Even assuming that the second train caused plaintiff's
injuries, plaintiff also failed to make a prima facie showing
that the operator of that train acted negligently.   In support of
his claim of negligence, plaintiff argues that an incident report
prepared by a NYCTA employee indicates that the operator saw the
white sneakers on the track "as he was entering" the station,
which -- according to plaintiff's expert -- would have allowed
sufficient time for the operator to engage the emergency brake
and stop the train before hitting plaintiff.   However,
plaintiff's expert implicitly rejected the proposition that the
operator observed the sneakers immediately upon entering the
station -- a 400 foot distance -- by testifying that the train's
headlights would not have illuminated the sneakers until, at the


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earliest, "151.5 feet from the front of the train."    Although the
expert opined that 151.5 feet would have been a sufficient
distance to stop the train, there is no record evidence to
support the expert's assumption that the operator actually
observed the sneakers from a distance of 151.5 feet.    Rather,
according to the operator's trial testimony as well as his
written report from the day of the accident, the operator did not
see the sneakers until the train was almost fully stopped near
the end of the station.   In the absence of any credible evidence
that the operator had adequate time to stop the train, the jury's
verdict relied on unsubstantiated speculation regarding the
operator's negligence (Cohen, 45 NY2d at 499 [1978]).
          Because plaintiff failed to make a prima facie showing
of either negligence or causation, the jury's verdict is not
supported by legally sufficient evidence and should be set aside.




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