Mercado v. New York City Transit Authority , 22 N.Y.S.3d 873 ( 2016 )

Mercado v New York City Tr. Auth. (2016 NY Slip Op 00451)

Mercado v New York City Tr. Auth.

2016 NY Slip Op 00451

Decided on January 26, 2016

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 26, 2016
Friedman, J.P., Renwick, Saxe, Moskowitz, JJ.

21 301301/10

[*1]Hector Mercado, Plaintiff-Appellant,

v

New York City Transit Authority, et al., Defendants-Respondents.

The Law Office of Samuel Katz, New York (Samuel Katz of counsel), for appellant.

Lawrence Heisler, Brooklyn, for respondents.

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.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 26, 2016

CLERK