Corsino v. New York City Transit Authority , 839 N.Y.S.2d 490 ( 2007 )

Mazzarelli, J.P., and Saxe, J.,

dissent in a memorandum by Saxe, J., as follows: At 7:45 a.m. on the morning of August 21, 2000, plaintiff Cordelia Corsino was seriously injured when she tripped over a cord lying on the platform as she exited an 8th Avenue subway train at the 14th Street station. Defendant Transit Authority was in the process of renovating this station: defendant contractor CAB Associates had subcontracted with defendant Sheldon Electric for electrical work, which in turn subcontracted with defendant Villafane for the installation of telephone lines. Villafane had installed a conduit, and the cord upon which the injured plaintiff tripped was a drag line that had been inside the conduit.

A drag line is used by contractors to pull wire through conduits to the location of an installation. In this case, the drag line was hanging from a conduit just above a telephone back plate located in a column on the platform, awaiting the installation of a public telephone. It is assumed here that the drag line had been vandalized in such a manner that it was pulled from the conduit on the column, and left strewn on the floor.

In opposition to defendants’ motion seeking summary judgment on the ground that they neither created nor had notice of the hazard, plaintiffs submitted the affidavit of Robert Kopelman, a master electrician. Kopelman observed that vandalism is a known danger when work is being performed on a New York City subway platform, and asserted that the vandalism that apparently occurred could have been avoided had the subcontractor installed inexpensive cover plates over the conduit and/or secured the drag line inside the conduit “at a location out of reach of any vandals and in manner that it would not come loose with the vibrations of trains entering and exiting the station.” He also observed that the amount of excess drag line should have been reduced so that it could not reach the floor and cause a tripping hazard if it came loose or became unsecured.

This affidavit provided a sufficient basis for a finder of fact to decide whether defendants could be held liable for the hazardous condition that caused the injured plaintiffs fall, based upon their ability to foresee and prevent the hazard. Along the same lines, the evidence is sufficient to present a question of fact not only as to Villafane’s liability, but as to whether the Transit Authority, CAB and Sheldon exercised requisite supervisory or safety control over Villafane or the property so as to preclude their dismissal from the lawsuit.

I respectfully disagree with the majority’s bare conclusion that as a matter of law, the creation of the hazard was not foreseeable, and that the theory of causation was too attenuated from the injury to permit a finding of liability.